Potomac Electric Power Co. v. United States, 6562.

• Decision Date: 25 May 1936
• Docket Number: No. 6562.,6562.
• Citation: 66 App. DC 77,85 F.2d 243
• Parties: POTOMAC ELECTRIC POWER CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

66 App. DC 77, 85 F.2d 243 (1936)

POTOMAC ELECTRIC POWER CO. v. UNITED STATES.^*

No. 6562.

United States Court of Appeals for the District of Columbia.

Decided May 25, 1936.

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

S. R. Bowen and H. W. Kelly, both of Washington, D. C., for appellant.

Henry H. Glassie, of Washington, D. C., for appellee.

VAN ORSDEL, Associate Justice.

On December 28, 1934, the United States filed its petition in the Supreme Court of the District of Columbia, seeking the condemnation of lot 805, square 144, on which was located substation 19 of the defendant, Potomac Electric Power Company. Defendant company answered, setting forth that established in substation No. 19 were electrical fixtures for the distribution of electric energy for heat, light, and power to many government buildings and to the general public in the vicinity of the substation; that certain of its property, used as an integral and essential part of its electrical system and operated through substation 19, "will be seriously affected, damaged, completely destroyed or rendered useless by the taking of the property of said defendant described in the petition herein."

On April 9, 1935 the United States filed a declaration of taking under section 10 of the Act of March 1, 1929 (45 Stat. 1415, 1417, 40 U.S.C.A. c. 7, § 370, D.C.Code 1929, T. 25, § 109), in which it was declared that defendant's property, among others, was taken in fee simple absolute, and that the United States deposited the sum of $19,500 in the registry of the court, as the estimated just compensation for defendant's property. The government then applied for a rule to show cause why defendant company should not vacate the premises on or before May 15, 1935.

Defendant answered the rule, setting forth substantially the same grounds of defense contained in its answer to the original petition, with the additional averment that the petition failed to show express statutory authority for the taking of defendant's property or for the closing of the alleys and streets occupied by defendant's conduits, cables, and appurtenances, used in connection with its substation, and failed to give any adequate assurance that there would be prompt ascertainment and payment of full and just compensation. It was further alleged that the taking of the substation would "injuriously affect and materially interfere with the distribution of direct current within the area now served by said substation"; that the estimated cost of reproduction now of the said property, after deducting for depreciation, was $225,430, and the original cost of the property was $183,471; that the sum of $19,500, deposited in the registry of the court, was insufficient to afford defendant just compensation; and that the time asked for vacation of the premises was too short to permit defendant to vacate and find some other way or ways of serving the territory, for which at least six months would be required.

On May 3, 1935 the court passed an order requiring the defendant company to surrender possession of the premises to the United States on July 1, 1935, and ordering that the defendant pay to the United States for the use and occupation of these premises, from April 9, 1935, until the date of the surrender of possession, 6 per cent. per annum on the sum deposited as the estimated compensation for the land involved.

On May 21, 1935, the condemnation jury returned its verdict awarding to defendant company the sum of $23,167 for "Lot 805 in Square 144, improved by premises known as Substation 19 of the Potomac Electric Power Company in the City of Washington, District of Columbia, and all easements, rights, privileges and appurtenances belonging or appertaining to the same, and all right, title and interest of the owner of said lot in and to the public alley abutting the same."

Objections and exceptions to the verdict were duly filed, and the court entered a judgment overruling them and ratifying and confirming the verdict. From the judgment this appeal was taken.

Considering first the contention of defendant that there was no statutory authority for the present proceeding, it will be observed that the Act of March 1, 1929 provides: "Whenever the head of any executive department, * * * hereinafter referred to as the acquiring authority, has been, or hereafter shall be, authorized by law to acquire real property in the District of Columbia for the construction of any public building or work, * * * such acquiring authority shall be, and hereby is, authorized to acquire the same in the name of the United States by condemnation under judicial process whenever in the opinion of such acquiring authority it is necessary or advantageous so to do; and in every such case the Attorney General of the United States, upon the request of such acquiring authority, shall cause a proceeding in rem for such condemnation to be instituted in the Supreme Court of the District of Columbia, holding a special term as a district court of the United States, which court is hereby vested with jurisdiction of all such cases of condemnation with full power to hear and determine all issues of law and fact that may arise in the same." Section 1 (40 U.S.C.A. § 361, D.C.Code 1929, T. 25, § 100).

The Secretary of the Treasury, the "acquiring authority" at whose request this proceeding was instituted, claimed authority by virtue of the foregoing act. The petition also set out section 201 of the National Industrial Recovery Act, 48 Stat. 195, 200 (40 U.S.C.A. § 401), under which the President was authorized to create a Federal Emergency Administration of Public Works, the powers of which were to be exercised by an Administrator appointed by the President. Section 202 of the same act (40 U.S.C.A. § 402) provided that the Administrator, under direction of the President, should prepare a comprehensive program of public works to include, among other things, "any projects of the character heretofore constructed or carried on either directly by public authority or with public aid to serve the interests of the general public." Section 203 (a) of the act (40 U.S.C.A. § 403 (a) authorized the President, through the Administrator or such other agencies as he might designate or create, "to construct, finance, or aid in the construction or financing of any public-works project included in the program prepared pursuant to section 202 section 402" and "to acquire by purchase, or by exercise of the power of eminent domain, any real or personal property in connection with the construction of any such project." Section 220 of the act (40 U.S.C.A. § 411) authorized the appropriation of the sum of $3,300,000,000 for the purpose of carrying out the act, which sum was appropriated in the Fourth Deficiency Act, fiscal year 1933, 48 Stat. 274, 275.

It was further alleged in the petition that, in pursuance of the act, Harold L. Ickes was appointed Administrator; that he had prepared the program of public works provided for in the act, which included the construction of a new Department of Interior building to be erected on squares 144 and 145, in the city of Washington; that the acquisition of those squares, either by purchase or by condemnation proceedings, was necessary for the construction of said building and its approaches; that the Secretary of the Treasury had been designated as the acquiring agency and had been allotted $11,000,000 and authorized to apply as much of that amount as was necessary for the acquisition of all privately owned lands in those squares. This action was approved by the President, and the Attorney General was requested by the Secretary of the Treasury to institute appropriate condemnation proceedings for the acquiring of the property within the squares designated.

We think the authority of the Secretary of the Treasury, under the National Industrial Recovery Act and the acts of the Federal Administration of Public Works established thereunder, to acquire, through the power of eminent domain, the property of the defendant, cannot be successfully challenged, nor can the authority of the President, who was empowered to have prepared "a comprehensive program of public works" which was to include "any projects of the character heretofore constructed or carried on * * * directly by public authority," and to acquire by eminent domain any real property in connection therewith, be successfully assailed. It can undoubtedly be sustained, in so far as it relates to the erection of a new Department of Interior Building, which is a project of the character heretofore carried on by public authority. Particularly must this authority be sustained when viewed in connection with the Act of Congress of May 25, 1926, 44 Stat. 630 (40 U.S.C.A. § 341 et seq.), wherein the Secretary of the Treasury was authorized and directed to acquire sites in the District of Columbia and erect thereon buildings for suitable accommodation of the executive departments of the government, within a restricted area south of Pennsylvania avenue, which area was enlarged by the Act of January 13, 1928, 45 Stat. 51 (40 U.S. C.A. §§ 341 note, 348), and further extended by the Act of March 31, 1930, 46 Stat. 136.

In view of the provisions of these acts, the Secretary of the Treasury had undoubted authority to acquire, within the area designated, the site for the Department of Interior Building; it being unnecessary for Congress to describe particularly the exact land to be taken. Chappell v. United States, 160 U.S. 499, 510, 511, 16 S.Ct. 397, 40 L.Ed. 510. He was likewise authorized to proceed with the acquisition of the land in question under the allotment of the necessary funds from the Public Works Administration. However, we base our holding on this...