State v. American Machine and Foundry Company

• Decision Date: 25 July 1956
• Docket Number: Civ. A. No. 5363.
• Citation: 143 F. Supp. 703
• Parties: The STATE of COLORADO ex rel. the LAND ACQUISITION COMMISSION, a duly constituted and acting public body corporate, Petitioner, v. AMERICAN MACHINE AND FOUNDRY COMPANY, a New Jersey Corporation, Hattie N. Curtis, Eva Gilbert, W. J. Graham, as Treasurer of El Paso County and W. F. Phelps, as Assessor of El Paso County, Respondents.
• Court: U.S. District Court — District of Colorado

143 F. Supp. 703

The STATE of COLORADO ex rel. the LAND ACQUISITION COMMISSION, a duly constituted and acting public body corporate, Petitioner, v. AMERICAN MACHINE AND FOUNDRY COMPANY, a New Jersey Corporation, Hattie N. Curtis, Eva Gilbert, W. J. Graham, as Treasurer of El Paso County and W. F. Phelps, as Assessor of El Paso County, Respondents.

Civ. A. No. 5363.

United States District Court D. Colorado.

July 25, 1956.

COPYRIGHT MATERIAL OMITTED

Duke W. Dunbar, Atty. Gen. for the State of Colorado, John P. Holloway, Asst. Atty. Gen., for petitioner.

Lewis, Grant & Davis, Byron R. White, and Robert H. Harry, Denver, Colo., Cox, Langford, Stoddard & Cutler, Washington, D. C., of counsel, for respondents.

KNOUS, Chief Judge.

The petition in condemnation herein involved initially was filed on April 19, 1956 in the State District Court of El Paso County, Colorado. Thereafter, on May 9, 1956, the Respondent, American Machine and Foundry Company, filed its petition for removal of the action against it to this Court. The matter now rests upon Petitioner's motion to remand.

The petition in condemnation sets forth, generally, that the Land Acquisition Commission was created pursuant to a statute of Colorado, to procure and convey to the United States of America certain lands situate in the State of Colorado to be designated by an agency of the Federal Government for use as a site for the United States Air Force Academy; that Parcel No. 147 is a tract of land situate in El Paso County, Colorado, which is needed for construction of the Academy; that the Respondent Foundry Company is the record owner thereof; that the Respondent Hattie N. Curtis is the record owner of the mineral interest or estate underlying a portion of the parcel; that Respondent Eva Gilbert may have a reversionary interest therein, and, that Respondent Graham, as Treasurer of El Paso County, may have some claim against the parcel due to tax liens. The Respondent Phelps, County Assessor, was joined only for purpose of serving upon him notice of the action. Prayer is made for condemnation of the parcel and for a determination of compensation.

The petition for removal alleges that the action is one of which this Court has original jurisdiction:

1) Because the matter in controversy exceeds the sum of $3,000 exclusive of interest and costs and arises under the Constitution, laws or treaties of the United States, 28 U.S.C.A. § 1331, and 2) because it is a civil action between citizens of different states with a sufficient amount in controversy, 28 U.S.C.A. § 1332, and therefore removable under 28 U.S.C.A. § 1441.

Proceeding first to a determination of whether or not there is here involved a "federal question" within the contemplation of 28 U.S.C.A. § 1331:

It is contended by the Respondent Foundry Company that the allegation in the first paragraph of the petition in condemnation that "the Land Acquisition Commission was created and established * * * to procure and convey to the United States of America all lands and rights pertaining thereto, or other interests therein, within an area designated by the agencies of the Federal Government as a site for a United States Air Force Academy," sufficiently states a federal question to permit this Court's cognizance of the action. The theory is that since the statute of Colorado empowered the Commission to purchase land only as designated by an agency of the federal government, the statute of the United States, of which the Court may take judicial notice, which empowers the federal agency to so designate, must be construed, and thus a "federal question" is presented.

The Session Laws of Colorado, Second Extraordinary Session 1954, chapter 2, as amended, Session Laws of Colorado 1955, chapter 54, provides, in part:

"Section 1. There is hereby created a commission, which shall be known as the Land Acquisition Commission, and hereafter called the commission. It shall be composed of three members who shall be appointed by the Governor and who shall serve without compensation and for the life of this act, or until their duties herein prescribed shall be completed or until they shall be removed by the Governor, whichever shall occur first. In the event of a vacancy on the commission, it shall be filled by appointment by the Governor.

"Section 2. — Corporate Powers — Said commission shall be a body corporate and shall have the power to adopt and use a common seal at will and shall have and exercise all powers necessarily incident to a body corporate and as provided by law. Said commission is established for the sole purpose of and is hereby empowered to treat with the federal government and its duly constituted agencies relative to the selection of a permanent location within the state for a United States Air Force Academy and to procure and convey real property selected or designated. In the event of the selection by the duly constituted agencies of the federal government of a site in the state of Colorado as a permanent location for such Air Force Academy, then the commission is hereby empowered with the approval of the governor to bind the state of Colorado to procure and convey to the federal government all lands and rights pertaining thereto within the area designated by the agencies of the federal government. Said commission is authorized and empowered to acquire lands and rights pertaining thereto, or other interests therein, by donation, purchase, exchange of state owned lands, or otherwise, and is also empowered to receive and apply gifts of money to be used in the purchase of such lands. Said commission is further empowered to acquire such real property in the name of the state of Colorado, by the exercise of eminent domain through condemnation proceedings in accordance with law, which power shall exist, and condemnation proceedings may be instituted, for the period from the effective date of this act and until the existence of the commission is terminated as provided herein. Said commission is further empowered to convey to the federal government, its agencies or instrumentalities, all such real property so acquired with or without compensatory payment or exchange. Said commission is further authorized and empowered to contract for such services as it may require and may institute in the name of the state of Colorado such other types of legal proceedings as may be necessary to fully accomplish its duties as herein prescribed.

"Section 3. Revolving Fund — There is hereby created a revolving fund which shall consist of the balance of the sum heretofore appropriated to the land acquisition commission and such other moneys as said commission may from time to time receive. Said fund is hereby appropriated and may be used by said commission in connection with its duties herein prescribed and shall remain available to said commission until July 1, 1959, or until the duties of said commission shall be completed, whichever shall first occur, at which time the existence of said commission shall expire and any moneys unexpended shall revert to the general fund."

The federal statutes of which the Respondent Foundry Company desires the Court to take judicial notice are §§ 1851-1857 of Title 10 U.S.C.A.

Section 1851 provides for the establishment of the Academy.

Section 1852 provides in part:

"(a) The Secretary of the Air Force shall determine the location of the Academy within the United States in the following manner:

"(1) The Secretary of the Air Force shall establish immediately a commission, and appoint five members thereof, to advise him in connection with the selection of a permanent location for the Academy. The commission shall make its report to the Secretary as soon as practicable.

"(2) The Secretary shall accept the unanimous decision for a permanent location by such commission. In the event such recommendation is not unanimous, the commission by a majority vote shall submit to the Secretary three sites from which the Secretary shall select one as the permanent location.

"(b) Following the selection of a location for the Academy, the Secretary of the Air Force is authorized —

"(1) to acquire land from other Government agencies without reimbursement, with the consent of such agencies;

"(2) to acquire lands and rights pertaining thereto, or other interests therein, including the temporary use thereof, by donation, purchase, exchange of Government owned lands, or otherwise, without regard to section 551 of Title 40;

"(3) to prepare plans, specifications, and designs, to make surveys and to do all other preparatory work, by contract or otherwise, as he deems necessary or advisable in connection with the construction, equipping and organization of the Academy at such location * * *."

The body of the law abounds with general principles concerning the determination of how and when a case arises under the Constitution or laws of the United States. Many of these are set forth with clarity in the leading case of Gully v. First National Bank, 1936, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70. At the expense of brevity, excerpts from the opinion therein will be quoted at some length, for its reasoning alone sounds the death knell of any contention that this action presents such a "federal question" as to bring it within this Court's jurisdiction.

The Gully action was commenced in a state court of Mississippi by the petitioner, the state Collector of Taxes, to receive a money judgment. The respondent bank, a national banking association, had assumed the debts and liabilities of its predecessor, among which were taxes owing to the state, county, city, and school district. The assessment was imposed upon the shares or capital stock of the bank, its surplus and undivided profits, exclusive of the value of the real estate. The bank, in violation of its covenants, failed to pay the taxes of the old bank.

The case was removed to the federal court where the motion to remand was denied, the Circuit Court of...