United States v. Cain

• Decision Date: 09 July 1947
• Docket Number: Civ. No. 1047.
• Citation: 72 F. Supp. 897
• Parties: UNITED STATES v. CAIN et al.
• Court: U.S. District Court — Western District of Michigan

72 F. Supp. 897

UNITED STATES v. CAIN et al.

Civ. No. 1047.

District Court, W. D. Michigan, S. D.

July 9, 1947.

Joseph F. Deeb, U. S. Atty. for the Western District of Michigan, and Theodore H. Elferdink, Asst. U. S. Atty., both of Grand Rapids, for plaintiff.

Philip A. Hadsell and Burns & Hadsell, all of Niles, Mich., for defendants.

STARR, District Judge.

The parties have stipulated the material facts in this case. In pursuance of this stipulation and the pleadings, the court makes the following findings:

Findings of Fact

1. On August 1, 1944, Dr. Robert Henderson and wife, as owners and lessors, entered into a written lease with the United States of America, as lessee, whereby certain premises on the first floor of the building at 107 north Second street, in the city of Niles, Michigan, within this judicial district, were leased to the United States for the term beginning August 1, 1944, and ending June 30, 1945, at a rental of $70 per month. The lessee was given the right, at its option, to renew the lease from year to year at the same rental and upon the same terms and conditions, provided it gave the lessors written notice of renewal at least 15 days prior to the expiration of the lease or any renewal thereof. The lease further provided that no renewal should extend beyond June 30, 1950. The lessee renewed this lease from year to year, and at the time the present suit was begun, it had been renewed to June 30, 1947.

2. In November, 1946, Robert Henderson and wife conveyed the property in which the leased premises were located to defendants Fred C. Henderson and wife, Mary G. Henderson.

3. The rent for the months of January, February and March, 1947, became delinquent, and on April 23d defendants Henderson served a seven-day notice, addressed to the United States of America, to quit and surrender the premises because of nonpayment of rent. This notice was served upon one Allen E. Luce, local office manager for the Michigan unemployment compensation commission, which was then occupying the premises.

4. Said Allen E. Luce had been in charge of the premises for the United States from the beginning of the lease in 1944 until December 16, 1946. Thereafter he has continued in charge of the premises as an employee and local office manager for the Michigan unemployment compensation commission.

5. The delinquent rent was not paid in full within the seven-day period provided in the notice to quit, and on May 2, 1947, defendants Henderson began summary suit or proceedings before defendant Thomas W. Cain, Jr., a circuit court commissioner for Berrien county, Michigan, to obtain possession of the premises. Comp.Laws Mich.1929, sec. 14975, subd. 2, Stat.Ann. sec. 27.1986, subd. 2. The commissioner issued a summons directed to the United States of America, which was served upon said Luce.

6. At a hearing on May 6, 1947, the circuit court commissioner entered judgment in favor of defendants Henderson and against the United States for restitution of the premises. The United States was not represented by attorney at this hearing. Luce, who was present at the hearing, requested an adjournment, which was denied by the commissioner.

7. The rent for January and February, 1947, had been paid by the United States as lessee prior to the hearing, and in the judgment of restitution the commissioner determined that there was due to defendants Henderson as lessors the sum of $70 as rent for March. Since the hearing and the entry of judgment of restitution on May 6th, the United States has paid the rent for March and April and has tendered the rent for May. Defendants Henderson accepted the March and April rent but refused to accept the rent for May.

8. On May 12th the commissioner issued a writ of restitution, and defendants Henderson placed it in the hands of defendant Arthur Pears, a police officer, for execution. On May 16th Pears notified Luce, who was in charge of the premises, that he would forcibly execute the writ on May 22d unless possession of the premises had been surrendered to defendants Henderson.

9. On May 21st plaintiff filed complaint in the present case, alleging that the summary suit or proceedings had been instituted by defendants Henderson against the United States of America without its consent and that the judgment for restitution of premises entered in such suit was void. It asked for an order temporarily restraining defendants and each of them from enforcing the judgment of restitution and from executing the writ of restitution; and that they be directed to show cause why the restraining order should not be made permanent. Upon the filing of the complaint this court issued a temporary restraining order, which by stipulation has been continued in full force and effect. Defendants answered, denying plaintiff's right to the relief sought and asking for an order directing it to vacate the premises.

Discussion

The questions presented are: (1) Is the judgment for restitution of premises entered by the circuit court commissioner on May 6, 1947, void? (2) If the judgment is void, can this court enjoin its enforcement?

Plaintiff contends that the judgment for restitution of premises is void because the summary suit or proceedings before the circuit court commissioner was a suit against the United States of America and that such sovereign power cannot be sued without its consent. Defendants Henderson contend that as the United States had not paid the delinquent rent at the expiration of their seven-day notice to quit for nonpayment of rent, the lease of August 1, 1944, was canceled and terminated, and that they were then entitled to institute summary suit or proceedings in the state court to obtain possession of the premises.

The court holds that the summary suit or proceedings which defendants Henderson instituted before the circuit court commissioner was a suit against the United States of America. The rule has been judicially established that the United States as a sovereign power cannot be sued without its consent. The consent of the sovereign power to be sued could be given only by act of Congress. United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888; United States v. Inaba, D.C., 291 F. 416. The court finds no federal statute authorizing or consenting to a suit or proceedings against the United States to recover possession of leased premises because of nonpayment of rent. In the case of United States v. Sherwood, 312 U.S. 584, 586, 587, 61 S. Ct. 767, 769, 85 L.Ed. 1058, the court said:

"The United States, as sovereign, is immune from suit save as it consents to be sued, United States v. Thompson, 98 U.S. 486, 25 L.Ed. 194; United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171; Kansas v. United States, 204 U.S. 331, 27 S. Ct. 388, 51 L.Ed. 510; Minnesota v. United States, 305 U.S. 382, 387, 59 S.Ct. 292, 294, 83 L.Ed. 235; Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 388, 59 S.Ct. 516, 517, 83 L.Ed. 784; United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888 (see cases cited in The Pesaro, D.C. 277 F. 473, 474, et seq.) and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit. Minnesota v. United States, supra, 305 U.S. 388, 59 S.Ct. 295, 83 L.Ed. 235 and cases cited; cf. Stanley v. Schwalby, 162 U.S. 255, 270, 16 S.Ct. 754, 760, 40 L. Ed. 960. Jurisdiction to entertain suits against the United States to recover damages for breach of contract and certain other specified classes of claims was conferred on the Court of Claims by Act of February 24, 1855, 10 Stat. 612."

"We may lay the postulate that without specific statutory consent, no suit may be brought against the United States. * * * Even when suits are authorized they must be brought only in designated courts." United States v. Shaw, supra 309 U.S. at pages 500, 501, 60 S.Ct. 661, 84 L.Ed. 888 (certiorari to the Supreme Court of Michigan).

"The objection to a suit against the United States is fundamental, whether it be in the form of an original action or a set-off or a counterclaim. Jurisdiction in either case does not exist unless there is specific congressional authority for it." Nassau Smelting Works v. United States, 266 U.S. 101, 106, 45 S.Ct. 25, 69 L.Ed. 190.

In United States v. Inaba, supra (291 F. at pages 417-419) the court said:

"It is elementary law that the United States cannot be sued without its consent, clearly manifested by an act of Congress. In Stanley v. Schwalby, 147 U.S. 508, 13 S.Ct. 418, 37 L.Ed. 259, Mr. Chief Justice Fuller speaking for the court, it is said:

"`They (the United States) cannot be subjected to legal proceedings at law or in equity without their consent, and whoever institutes such proceedings must bring his case within the authority of some act of Congress. Such is the language of this court in United States v. Clarke, 8 Pet. 436, 444 8 L.Ed. 1001. The same exemption from judicial process extends to the property of the United States, and for the same reasons. As justly observed by the learned judge who tried this case, there is no distinction between suits against the government directly and suits against its property.' * * *

"To compel the United States to go into the state courts for the protection of its property clearly would subject it to the jurisdiction of the state tribunals, precisely like any other litigant, and the consequence would be to force the government into a state court by indirection when this could not be accomplished by direction. * * *

"It is settled law that the judicial tribunals of a state cannot entertain suits in which the sovereign government is sought to be made a party defendant, neither can the property of the government be proceeded against in such courts."

"It is well settled that the United States Government is not suable as of common right, and the party who sues it must bring his case within the authority of some act of Congress or the court cannot...