McComb v. United States Housing Corporation
| Decision Date | 01 March 1920 |
| Docket Number | 375. |
| Citation | 264 F. 589 |
| Parties | McCOMB et al. v. UNITED STATES HOUSING CORPORATION et al. |
| Court | U.S. District Court — District of Delaware |
William S. Hilles, of Wilmington, Del., for plaintiffs.
Charles F. Curley, U.S. Dist. Atty., of Wilmington, Del., and Henry H. Glassie and Thomas W. O'Brien, both of Washington D.C., for defendants.
The complainants, James C. McComb and another, trustees, and Martha McComb Bush, beneficiary under the trust, by their bill of complaint allege that the defendants, United States Housing Corporation, a corporation of the state of New York and John J. Goldey, are, without justification or right exercising or attempting to exercise dominion over certain real estate of the complainants located in this district, and that such acts amount to a cloud upon the title of the complainants to that real estate. Further allegations are in substance that the complainants and the United States Housing Corporation entered into a contract in August, 1918, for the sale of certain of their lands to that corporation, wherein it was provided that the consideration money should be paid and deed delivered upon a short day therein fixed; that the defendant corporation entered into possession of said lands but did not pay the consideration money or perform any other of the terms or conditions provided by said contract to be by it done or performed; that construction work was begun upon said lands and continued until the signing of the Armistice; that the lands covered by the contract consisted of about 18 1/2 acres of a larger tract of land; that while the construction work was in progress the defendant corporation requested the complainants to sell and convey to it the remainder of the tract, which request was refused; that after the Armistice nothing was done until about the latter part of August, 1919, when the complainants were informed that the defendant corporation 'had attempted to requisition the entire tract of land aforesaid,' and for this purpose had appointed John J. Goldey, the remaining defendant, as the requisition officer, and had authorized him to enter upon and take actual possession of the lands in question; that notice of such attempted requisition was posted on the lands in question; and that immediately after such attempted requisition the United States Housing Corporation advertised for sealed bids for the purchase of all said lands.
It is further alleged that the defendants pretend and claim that their doings are authorized and justified by an act of Congress of May 16, 1918, entitled 'An act to authorize the President to provide housing for war needs' (40 Stat. 550), as amended by an act of Congress of June 4, 1918 (40 Stat. 595 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Secs. 3115 5/6a-3115 5/6i)); but complainants aver that the act of Congress aforesaid is unconstitutional, that the attempted requisition was not for the use authorized by the act, and that such attempted requisition was not made as provided by the aforesaid act in that no compensation has been paid or tendered to the plaintiffs for said lands. The bill prays, among other things, for a decree adjudging the act of Congress aforesaid to be unconstitutional, and the attempted requisition to be wholly void, removing the cloud cast upon the title of the complainants by reason of the acts aforesaid, and granting injunctive relief.
Neither of the defendants was an inhabitant of or found within this district, nor did they or either of them voluntarily appear. Acting under section 57 of the Judicial Code (Comp. St. Sec 1039), the court made an order directing the defendants to appear by a day certain designated in the order. This order was served outside the district upon each defendant. Thereupon each of the defendants, having by leave of the court entered a special appearance, moved the court to quash the aforesaid order for reasons which are in substance that (1) the United States may not be lawfully sued without...
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