United States v. 1,960 ACRES OF LAND, ETC.

• Decision Date: 04 January 1944
• Docket Number: No. 2567-PH.,2567-PH.
• Citation: 54 F. Supp. 867
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES v. 1,960 ACRES OF LAND IN RIVERSIDE COUNTY, CAL., et al.

54 F. Supp. 867

UNITED STATES v. 1,960 ACRES OF LAND IN RIVERSIDE COUNTY, CAL., et al.

No. 2567-PH.

District Court, S. D. California, Central Division.

January 4, 1944.

Irl D. Brett, Sp. Asst. to Atty. Gen., and M. B. Zimmerman, Sp. Atty., of Los Angeles, Cal., for plaintiff.

Robert W. Kenney, Atty. Gen. of California, by Louis G. Campbell, Deputy Atty. Gen., for defendant State of California.

Earl Redwine, Co. Counsel, of Riverside, Cal., for defendant Riverside County.

HALL, District Judge.

This is a suit for the condemnation of land. The United States of America is designated as Plaintiff.

There can be no doubt that this Court has jurisdiction to condemn lands. Jurisdiction can be invoked by the Government as plaintiff, however, only by those persons authorized, and in the manner or method prescribed by statute. Whether or not the safeguards of those statutes have been complied with, so as to confer the necessary authority on the persons appearing herein as attorneys for the Government, is the immediate question, which in turn provokes the larger question which is one only of jurisdiction — the power of this court to act legally in a suit in which the United States is concerned as a party.

Jurisdiction is, of course, important in all cases, but it is of particular moment in cases of eminent domain, or any action which affects the title of lands. In an ordinary case the bad results of a judgment made without jurisdiction can be corrected by a subsequent judgment—without great loss usually—but a judgment of condemnation of lands without jurisdiction is bound to result almost inevitably in a trail of confusion, litigation, loss and all the other attendant miseries and evils, which bad land titles have produced in and out of courts.

If the Court acts without jurisdiction, then the Court has neither settled the validity of the title which the United States acquires nor has it eliminated the possibility of future claims against the Government on the ground that the parties who obtained the money for the land were not entitled to it.

There are several hundred such cases pending in this District. No accurate information can be obtained as to the number of parcels involved in these cases, but persons attached to the Department of Justice have variously estimated from 10 to 25,000 different parcels (in one case there were over 1,200) and as many or more defendant owners, very few of whom have been served with process. How many defendants know that the Government is in possession and claiming title to their property is undisclosed and is likely unknown. Such facts, of course, cannot affect the jurisdiction of this court, but they serve to show that jurisdiction, or lack of it, is of the greatest moment and of the most serious consequence to the whole people of this district as well as to the nation.

Until comparatively recently, the U. S. District Attorney appeared on all pleadings and in all cases. There is no question as to those cases insofar as he has acted and is acting to represent the United States. Questions here discussed arose when the U. S. Attorney's name was stricken or omitted from pleadings in cases in which he previously appeared or on new cases filed where neither on the pleadings, nor otherwise in the case, was there an appearance by the District Attorney, nor any Assistant District Attorney, the Attorney General, nor any Assistant Attorney General, nor any person for whom there was on file in the Clerk's Office or presented to the Court, any general or special letter, commission, or other written appointment, or authorization from the Attorney General to the parties whose names are signed as Attorneys for the Government, whereby they or any of them are "specially retained" to assist in the "trial of any case" or "specially appointed" or "specifically directed" or "commissioned" as a "Special Assistant to the Attorney General" or to the district attorney, to conduct any kind of "legal proceeding" of or concerning either the particular lands involved, or any lands at all, or any other kind of "case" or legal proceeding.

These questions originally arose about or before the 1st of October, 1943. Since then a procedure has apparently been worked out which is the one followed in the instant case and to which the conclusion herein is necessarily limited. This procedure will appear in statement of this case in a subsequent portion of this memorandum.

According to a memorandum,¹ left with me on October 7th and signed "Irl D. Brett" there are in Los Angeles two separate staffs of "Special Assistants" on land matters, one under the direction of Mr. Williams, who is "in charge of all matters arising out of the Trial Section of the Lands Division;" and the other one under Mr. Brett, who is "in charge of all matters arising out of the Condemnation Section, Lands Division."

The memorandum further states that by the term, "all matters", is meant, "all proceedings originating from the Lands Division, Department of Justice and filed or to be filed in the District Court of the Southern District of California." This would seem to comprehend that Mr. Brett and Mr. Williams not only would have charge of all matters filed in the future, but were and are to replace the United States Attorney in all suits to which the United States was a party involving lands which have heretofore been filed. Inasmuch as all condemnation suits contemplate a trial, sooner or later, it is not clear just where the authority of either Mr. Brett or Mr. Williams begins and ends. The "direction", referred to in the memorandum of Hon. Norman H. Littell, Assistant Attorney General, made in August, 1943, making these changes is not on file in the court or presented.

The questions involved in this case are not necessarily those which might arise under Section 314 and 306, Title 5 U.S.C.A., in a suit to recover money paid to a person as a "Special Assistant" or "Special Attorney" on the ground he appeared in a case when not "specially authorized by law" or that the service could have been rendered by the District Attorney—or for other reasons arising under those Sections. Suffice it to say that we are not here concerned with the right of any person to receive pay for services to the Government— the questions are much more far reaching.

And, of course, this Court is not concerned with the personnel of the Attorney General's Office or with the policy which, instead of making all such attorneys either regular or Special Assistants to the United States Attorney (where their work would still be under the general supervision and direction of the Attorney General), and attaching the clerical force to the United States Attorney's staff, guided the Attorney General in setting up, apart from and independent of the United States Attorney, a separate staff of fifty people or so, some of whom are called "Special Assistants to the Attorney General" and "Special Attorneys, Department of Justice" all receiving their immediate orders and directions from and being under the supervision neither of the Attorney General nor any regular Assistant Attorney General nor the U. S. District Attorney, but another "Special Assistant to the Attorney General" with "plenary" power as to the cases they are assigned to handle and the conduct thereof.

Some question, however, may arise in the consideration of this matter as to the legality of delegating to a Special Assistant the right in turn to delegate to other Special Assistants the power to represent (try and present cases, sign stipulations for judgment, etc.) the United States of America in the securing of lands by condemnation.

Coming now to a statement of the facts and procedure in the instant case: The present complaint was filed November 9, 1942. It is signed "Leo V. Silverstein, U. S. Attorney (who was then the United States District Attorney) Irl D. Brett, Special Assistant to the Attorney General, Sylvan G. Bey, Special Attorney Lands Division, Department of Justice." Thereafter an Order for Immediate Possession was made and various Declarations of Taking were filed which gave the United States Title to the property. Tit. 40 U.S.C.A. § 258. This being the case, there is nothing to adjudicate, except to determine as between the various defendant owners the respective amounts of the money deposited in court to which each defendant is entitled. Upon stipulation, many judgments have been made in this case ordering the release of stipulated amounts of money. In all of the prior proceedings and stipulations the United States District Attorney appears as counsel for the Government. On November 22nd and 23d there was presented a stipulation, as to Tract 21 and 22 only, wherein and whereby the defendants, County of Riverside and State of California, agreed that as to said tract the County of Riverside should be paid the sum of $20.00 from the deposit in Court. The stipulation was executed by the County Counsel of the County of Riverside and by the Attorney General of the State of California for the defendants and was executed and presented on behalf of the United States as follows:

"Presented by "Irl D. Brett "Special Assistant to The Attorney General "M. B. Zimmerman "Special Attorney Lands Division Department of Justice "By Irl D. Brett (signed) "Attorney for Plaintiff"

It was actually presented, not by Mr. Brett, but by Mr. Zimmerman, who is a lawyer duly admitted to practice to the Bar of this Court. The stipulation was not signed or presented by the United States District Attorney for the Southern District of California, nor any one representing himself to be either such officer or an Assistant District Attorney. There is no substitution of attorneys on file, nor any document executed by the United States District Attorney indicating that he will not or cannot proceed in the instant matter. There was presented and filed at the same time a mimeographed copy of the letter signed by the Attorney...