In re Hastings Lock and Dam

• Decision Date: 17 May 1932
• Docket Number: No. 2211.,2211.
• Citation: 2 F. Supp. 324
• Parties: In re HASTINGS LOCK AND DAM. UNITED STATES v. CERTAIN LANDS IN WASHINGTON AND DAKOTA COUNTIES et al.
• Court: U.S. District Court — District of Minnesota

2 F. Supp. 324

In re HASTINGS LOCK AND DAM UNITED STATES v. CERTAIN LANDS IN WASHINGTON AND DAKOTA COUNTIES et al.

No. 2211.

District Court, D. Minnesota, Third Division.

May 17, 1932.

John P. Kyle, Sp. Asst. U. S. Dist. Atty., of St. Paul, Minn., for the United States.

John P. Devaney, of Minneapolis, Minn., for respondents.

NORDBYE, District Judge.

The government filed objections to the taxation of any costs or attorneys' fees on the ground that there is no law or act of Congress of the United States authorizing the taxation of costs against the government in condemnation proceedings.

The appeals in question were made from the awards of the commissioners in the condemnation by the government for an easement for flowage purposes on certain lands made necessary by the construction of the so-called Hastings Lock and Dam.

Counsel for the respondents have presented the court with prodigious and exhaustive briefs, contending that costs should be taxed against the government in condemnation proceedings, in absence of any legislative authority, and the extraordinary zeal exhibited by counsel for the respondents prompts the court to briefly set forth its views herein.

The Fifth Amendment to the Constitution of the United States provides, in part, as follows: "* * * Nor shall private property be taken for public use, without just compensation."

The Act of Congress, August 1, 1888 (25 Stat. 357, c. 728, 40 USCA §§ 257, 258) is entitled: "An act to authorize condemnation of land for sites of public buildings, and for other purposes." The procedure to be followed in federal condemnation proceedings is set out as follows: "Section 2. The practice, pleadings, forms and modes of proceeding in causes arising under the provisions of this act shall conform, as near as may be, to the practice, pleadings, forms and proceedings existing at the time in like causes in the courts of record of the State within which such circuit or district courts are held, any rule of the court to the contrary notwithstanding."

The Conformity Act (title 28, § 724, US CA, Rev. St. § 914) provides as follows: "Conformity to practice in state courts. The practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the district courts, shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the State within which such district courts are held, any rule of court to the contrary notwithstanding."

The provisions of the Minnesota statutes relating to eminent domain are found in chapter 41, §§ 6537 to 6578, inclusive, Mason's Minnesota Statutes 1927. Provisions are made in section 6550 Minnesota statutes with reference to costs on appeal from awards of commissioners. It reads as follows: "The court, in its discretion, may award to the prevailing party costs and the disbursements of the appeal."

Counsel for the respondents do not contend that the Conformity Act, or the Act of August 1, 1888, requires the federal courts to adopt the Minnesota statutes with reference to the allowance of costs in condemnation proceedings. They insist that the right to tax costs herein against the government is guaranteed by a fair and equitable interpretation of the Fifth Amendment to the Constitution relating to eminent domain, and that any legislative provisions with reference to costs cannot usurp the right of the courts to determine what is "just compensation" in condemnation proceedings. Respondents cite the case of Monongahela Navigation Co. v. United States, 148 U. S. 312, 13 S. Ct. 622, 37 L. Ed. 463. On page 327 of 148 U. S., 13 S. Ct. 622, 626, 37 L. Ed. 463, Justice Brewer states: "By this legislation congress seems to have assumed the right to determine what shall be the measure of compensation. But this is a judicial, and not a legislative, question. The legislature may determine what private property is needed for public purposes; that is a question of a political and legislative character. But when the taking has been ordered, then the question of compensation is judicial. It does not rest with the public, taking the property, through congress or the legislature, its representative, to say what compensation shall be paid, or even what shall be the rule of compensation. The constitution has declared that just compensation shall be paid, and the ascertainment of that is a judicial inquiry."

That is, respondents take the position that the allowance of costs and disbursements is of the substance, and not a mere matter of procedure, and that any attempt on the part of any legislative body to interfere with the courts' inherent right to judicially determine what is just compensation, is unconstitutional. It is respondents' position, therefore, that the only assistance of the Minnesota statutes in question relating to costs is that the view of the Legislature regarding the allowance of costs should be persuasive on the courts in determining whether or not costs should be allowed as part of the just compensation due landowners whose property is taken by condemnation proceedings, and assert that they will not receive just compensation for their property unless costs, disbursements, and attorneys' fees are allowed by the court.

It seems to this court that respondents have confused the right to recover just compensation for property taken and the costs incidental thereto, the allowance of which is clearly a creature of statute. The proceeding before this court on the appeal from the award of the commissioners is on the law side. It is not an equitable proceeding. Kohl v. United States, 91 U. S. 367, 23 L. Ed. 449. No costs were allowed at common law, and without statutory provisions there would be no authority for allowance of costs in any law action. It is apparently well recognized that, in the absence of legislation by Congress, no costs can be authorized against the government.

Hughes on Federal Practice, § 5272 (1931) says: "The sovereign power not being amenable for judgment of damages or costs, without its consent, costs against the Government cannot be imposed in any suit to which it is a party, without the authority of an act of Congress, so that the rule of decisions act does not apply, nor does the conformity act give the necessary authority."

In Treat v. Farmers' Loan & Trust Co. (C. C. A.) 185 F. 760, 763, it is said: "As a sovereign cannot be sued except by his own consent, it follows that he may prescribe the conditions upon which he will be sued. The law is clear that interest and costs cannot be awarded against the United States except by legislative warrant."

In the recent case of Henkel v. Chicago, St. Paul, Minneapolis & Omaha Railway Company, 284 U. S. 444, 52 S. Ct. 223, 225, 76 L. Ed. 386, the court refused to follow the statute of Minnesota in allowance of expert witness fees, and stated: "Additional amounts paid as compensation, or fees, to expert witnesses cannot be allowed or taxed as costs in cases in the federal courts. * * * The appellant, seeking the application of the statute of Minnesota, invokes the rule that `the laws of the several states, except where the Constitution, treaties, or statutes of the United States otherwise * * * provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply.' U. S. Code, tit. 28, § 725 (28 USCA § 725). But this provision, by its terms, is inapplicable, as the Congress has definitely prescribed its own requirement with respect to the fees of witnesses. The Congress has dealt with the subject comprehensively, and has made no exception of the fees of expert witnesses. Its legislation must be deemed controlling, and excludes the application in the federal courts of any different state practice."

The respondents cite cases of United States v. Sargent (C. C. A.) 162 F. 81; United States v. Nahant (C. C. A.) 153 F. 520; United States v. National City Bank (C. C. A.) 281 F. 754. The Sargent Case was a proceeding by the United States for the condemnation of certain lands, and the court entered an order confirming the report of the commissioners, and provided further that the United States should pay interest on the award. Exception was taken by the government to the allowance of interest, on the ground that, in absence of stipulation to pay interest, or statute allowing interest, none can be recovered against the United States. The court, however, overruled the exception taken by the government, and allowed interest. It is quite apparent that this case does not sustain respondents' position herein with reference to allowance of costs. The court in the Sargent Case was prompted to allow interest as a part of just compensation on the theory that, when the government takes the land, the owner is deprived of the use thereof, and that interest should be allowed on the sum awarded from the date of taking until the money is paid to the landowner. That is, if the owner was deprived of the use of his land, he should have interest on the award until it is paid. In United States v. Nahant, and United States v. National City Bank, supra, costs were apparently allowed against the government in condemnation proceedings. No objection was made, however, by the government to the allowance of costs, and in its decision the court did not pass upon the propriety of such allowance.

There is no United States decision which recognizes the propriety of taxing costs against the government without legislative authority, but there are many cases that emphatically hold that costs cannot be allowed. In the case of In re Postoffice Site (C. C. A.) 210 F. 832, 835, a per curiam decision, the court brushed aside a claim for costs and interest in a condemnation proceeding with the following language: "We know of no authority for the award of costs. The award of $2,500 and the items for interest and...