Slattery Company v. United States, 15741.

• Decision Date: 24 April 1956
• Docket Number: No. 15741.,15741.
• Citation: 231 F.2d 37
• Parties: SLATTERY COMPANY, Inc., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

231 F.2d 37 (1956)

SLATTERY COMPANY, Inc., Appellant, v. UNITED STATES of America, Appellee.

No. 15741.

United States Court of Appeals Fifth Circuit.

March 7, 1956.

Rehearing Denied April 24, 1956.

COPYRIGHT MATERIAL OMITTED

John B. Hussey, Hussey & Smith, Shreveport, La., for appellant.

Elizabeth Dudley, Atty., Dept. of Justice, Washington, D. C., Perry W. Morton, Asst. Atty. Gen., Roger P. Marquis, Atty., Washington, D. C., T. Fitzhugh Wilson, U. S. Atty., and Edmund E. Woodley, Asst. U. S. Atty., Shreveport, La., for appellee.

Before HUTCHESON, Chief Judge, and RIVES and CAMERON, Circuit Judges.

HUTCHESON, Chief Judge.

This appeal is from a judgment entered in a condemnation suit confirming the report of the commission¹ and entering judgment accordingly.

The condemnee, seeking reversal of the judgment, assigns six specifications of error.² Reserving for later treatment, Specifications Nos. 3 and 4, we take up each of the others in due order.

Of Specification No. 1, it is sufficient to say that we find ourselves in agreement with it in principle,³ and that, if the judgment were affirmed, it would be modified accordingly to effect the desired clarification.

Of Specification No. 2, it is sufficient to say that it presents no prejudicial error because, under the evidence in this case, it deals not with a real situation arising here but with a purely hypothetical one.

The same thing is true of Specification No. 5, both because it does not appear that any witness in any way based his valuation on this testimony, and because, in its report, the commission, while referring to the fact that there was some testimony on behalf of the government in an apparent attempt to show that the United States Engineers do not intend to exercise to their maximum extent all of the rights granted in the servitude, went on to state, "In fixing the value of just compensation, the commission has completely disregarded any testimony tending to show the intention of the government to exercise anything less than the full rights acquired under the servitude to the maximum extent which is possible in connection with Wallace Lake dam as constructed".

As to Specification No. 6, appellant stands no better. While asserting in brief and oral argument that Specification No. 6, complaining of the action of the commission in rejecting evidence of prices paid by the United States for the purchase in fee by private negotiation, of lands in the flowage area, was error, appellant cites only authorities supporting the general principle that consideration should be given to prices paid in voluntary sales, that is in dealings between persons willing and able, but not compelled, to buy or sell, it cites none applying that principle to prices paid by one having the right of eminent domain.

Appellee, on its part, cites many cases from this circuit and elsewhere,⁴ laying down the rule that "The prices paid in settlement of condemnation proceedings or the sum paid by the condemnor for similar land, even if proceedings have not been begun, is inadmissible". This rule, based upon the view that such payments are in the nature of compromise to avoid the expense and uncertainty of litigation and are not fair indications of market value, is the generally prevailing rule in this circuit and elsewhere. The only recognized exceptions to it are in cases where the fact that parties were condemnor and condemnee either was not known or had no influence because the sale was not in connection with, or in anticipation of, condemnation proceedings.⁵

When it comes, however, to Specifications 3 and 4, which in a frontal attack upon findings and award as denying just compensation, assail the judgment as taking its property without affording due process of law,⁶ we think that the matter stands quite differently and that, for the reasons hereafter stated, the judgment must be reversed.

This is a period of great governmental expansion, with enormously stepped up numbers of takings of private property for public use by expropriation, a streamlining of the procedures for taking,⁷ and, because familiarity breeds contempt, a consequent growing and, therefore alarming attitude of complacency, instead of viewing with alarm, with which government and public alike look upon the exertion of the power of eminent domain by which all that a man has can be taken from him by force. Because this is so, we deem it advisable, if not necessary, before stating wherein appellant was denied due process, to first set briefly down the simple but fundamental principles which, despite their being sometimes and in some places apparently more honored in the breach than in the observance, still govern expropriation proceedings.

Completely consonant, as it is, with Madison's historic pronouncement, "In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and, in the next place, oblige it to control itself", perhaps the best and most moving statement of the basic principle controlling here is to be found in the opinion of the Supreme Court, in Monongahela Navigation Co. v. United States, 148 U.S. 312, 13 S.Ct. 622, 37 L.Ed. 463, a portion of which was recently quoted as the conclusion of the opinion of the minority in United States v. Twin City Power Co., 350 U.S. 222, 76 S.Ct. 259, in support of its view that the failure of the majority to correctly apply them had resulted in depriving the property owner of the protection which this basic principle affords.

"The question presented is not whether the United States has the power to condemn and appropriate this property * * * for that is conceded, but how much it must pay as compensation therefor. Obviously this question, as all others which run along the line of the extent of the protection the individual has under the constitution against the demands of the government, is of importance, for in any society the fullness and sufficiency of the securities which surround the individual in the use and enjoyment of his property constitute one of the most certain tests of the character and value of the government. The first 10 amendments to the constitution, adopted as they were soon after the adoption of the constitution, are in the nature of a bill of rights, and were adopted in order to quiet the apprehension of many that without some such declaration of rights the government would assume, and might be held to possess, the power to trespass upon those rights of persons and property which by the Declaration of Independence were affirmed to be unalienable rights.

"* * * And in this there is a natural equity which commends it to every one. It in no wise detracts from the power of the public to take whatever may be necessary for its uses; while, on the other hand, it prevents the public from loading upon one individual more than his just share of the burdens of government, and says that when he surrenders to the public something more and different from that which is exacted from other members of the public, a full and just equivalent shall be returned to him.

"But we need not have recourse to this natural equity, nor is it necessary to look through the constitution to the affirmations lying behind it in the Declaration of Independence, for in this fifth amendment there is stated the exact limitation on the power of the government to take private property for public uses. And with respect to constitutional provisions of this nature, it was well said by Mr. Justice Bradley, speaking for the court, in Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524 29 L.Ed. 746: `Illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis.\'

"The language used in the fifth amendment in respect to this matter is happily chosen. The entire amendment is a series of negations, denials of right or power in the government; the last (the one in point here) being: `Nor shall private property be taken for public use without just compensation.\' The noun `compensation,\' standing by itself, carries the idea of an equivalent. * * * So that, if the adjective `just\' had been omitted, and the provision was simply that property should not be taken without compensation, the natural import of the language would be that the compensation should be the equivalent of the property. And this is made emphatic by the adjective `just.\' There can, in view of the combination of those two words, be no doubt that the compensation must be a full and perfect equivalent for the property taken * * *. This excludes the taking into account as an element in the compensation any supposed benefit that the owner may receive in common with all from the public uses to which his private property is appropriated, and leaves it to stand as a declaration that no private property shall be appropriated to public uses unless a full and exact equivalent for it be returned to the owner." 148 U.S. at pages XXX-XXX-XXX, 13 S.Ct. at page 625.

With these declarations and admonitions kept firmly in mind, we turn to the record to test by this basic principle the claim of the appellant that the findings and award of the commissioner are clearly erroneous⁸ within the meaning of the cases in that they furnish the basis for taking its property without just compensation and the due process the Fifth Amendment requires.

App...