Miller v. United States, 5423.

• Decision Date: 14 March 1932
• Docket Number: No. 5423.,5423.
• Citation: 57 F.2d 424,61 App. DC 58
• Parties: MILLER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

61 App. DC 58, 57 F.2d 424 (1932)

MILLER et al. v. UNITED STATES.

No. 5423.

Court of Appeals of District of Columbia.

February 29, 1932.

Rehearing Denied March 14, 1932.

Joseph D. Sullivan, of Washington, D. C., for appellants.

Leo A. Rover, Henry H. Glassie, Alex. H. Bell, Jr., and Arthur G. Lambert, all of Washington, D. C., for the United States.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

GRONER, Associate Justice.

This is a condemnation case. Congress by Act of March 4, 1927 (44 Stat. 1422 20 USCA §§ 191-194), provided for the establishment of a national arboretum. The act authorized the Secretary of Agriculture to acquire the necessary land by private purchase, condemnation proceedings, or gift. The act forbade the purchase of any land at a greater cost than its assessed value plus 25 per cent., and limited the cost of acquisition of all the land needed to the sum of $300,000. The appropriation was made by Act Dec. 22, 1927 (45 Stat. 14). The secretary, having acquired by purchase a certain portion of the lands desired and being unable to acquire certain other portions except by condemnation, began this proceeding June 26, 1929, four days before the expiration of the time limit of the appropriation. The proceedings were brought conformable to the provisions of the Condemnation Act of March 1, 1929 (45 Stat. 1415 D. C. Code 1929, T. 25, §§ 100-110o), which is an act providing for condemnation of land in the District of Columbia for the use of the United States. Section 10 of that act (D. C. Code 1929, T. 25, § 109) provides for an advance taking of the land, but as the provisions of that section were not invoked and as the other sections, which were, contain no more than the usual provisions, which the Supreme Court has held to be due process and not violative of the Fifth Amendment, we do not stop to discuss the point that the act is unconstitutional because of the right to an advance taking of the property contained in section 10.

A jury was impaneled, and a verdict returned December 3, 1930, fixing the value of appellants' property at $62,407.21. Appellants, on December 24 following, moved the trial court to set aside and vacate the verdict and to enter judgment of dismissal of the petition, among other reasons, because it then appeared that the appropriation had been so depleted in the purchase of lands by the secretary that less than 50 per cent. of the amount necessary to pay the award of the jury remained. The motion was overruled, but on February 5 appellants filed a second motion to dismiss on the ground that the entry of a judgment in relation to other parcels of land still further reduced the available appropriation and obviously left only an inadequate sum out of which the award to appellants might be paid, but the court likewise overruled this motion and entered judgment as to appellants' lands on March 3, 1931. The judgment recited that upon payment of the amount of the award, namely, $62,407.21, to the parties entitled thereto at the date of such payment, title in the land condemned should vest in the United States of America. The United States concede that the Secretary of Agriculture could not expend more than $300,000 in the aggregate, and that the awards made exceed that sum by over $60,000, or, stated otherwise, that the unpaid condemnation awards of approximately $140,000 cannot be paid out of $75,000, the unexpended balance of the appropriation.

The question, therefore, for decision is whether a judgment in a condemnation proceeding for an amount in excess of a definite money limitation fixed in the act authorizing the condemnation, without any limitation of time as to payment, is violative of the Fifth Amendment of the Constitution. The position of the United States is that it is immaterial whether or not at the end of the condemnation proceeding the amount of the appropriation remaining is adequate to cover the award, because the proceeding is conditional and subject to the right of the government to take the property at the awarded compensation, or to abandon the enterprise. They say, in effect, that the judgments entered were conditional judgments providing for the vesting of title upon the payment of compensation, and that compensation may be provided by the United States whenever they are ready to consummate the transaction without regard to whether the time is reasonable or unreasonable; in other words, that the condemnation proceedings having ascertained what is just compensation as of that date and the judgment having confirmed this, the government has in effect an option to consummate the transaction whenever it shall elect to appropriate and pay over the amount of the award. The government concedes that the Secretary of Agriculture cannot acquire land either by condemnation or purchase in excess of the congressional appropriation, but insists that the instant proceeding is not an acquisition of land but a mere ascertainment of the cost of acquiring it, and so it says the condemnation proceeding had at the instance of the secretary is merely carrying out the legislative will requiring him to condemn when the property may not be purchased within the stated amount, and that it is fair to assume that Congress will carry out the purposes of the original act by making an additional appropriation.

Appellants, on the other hand, insist that if the award exceeds the appropriation, the secretary is estopped to continue the proceedings; in other words, that the authority, which confessedly the secretary must have from Congress to start the proceedings, is conditioned upon an award within its terms, and, where the award exceeds the congressional limit, there is no authority at all.

We think it may be stated as a general proposition that, in the exercise by the United States of the power of eminent domain, compensation need not be paid, or even finally determined, in advance of the taking, provided reasonable, certain, and adequate provision is made at the time of the taking to ascertain and secure the compensation to be made to the owner. 1 Nich. Em. Dom., § 209, page 631. In Joslin Co. v....