United States v. CERTAIN LAND, ETC.

• Decision Date: 18 May 1944
• Docket Number: No. 482.,482.
• Citation: 55 F. Supp. 555
• Parties: UNITED STATES v. CERTAIN LAND SITUATE IN CITY OF CAPE GIRARDEAU, MO., et al.
• Court: U.S. District Court — Eastern District of Missouri

55 F. Supp. 555

UNITED STATES v. CERTAIN LAND SITUATE IN CITY OF CAPE GIRARDEAU, MO., et al.

No. 482.

District Court, Missouri, Southeastern Division.

May 18, 1944.

Harry C. Blanton, U. S. Dist. Atty., of Sikeston, Mo., and M. Walker Cooper, Sp. Asst. to U. S. Atty., of St. Louis, Mo., and B. H. Hasson, Asst. Atty. Gen., of United States, for plaintiff.

I. R. Kelso and L. L. Bowman, both of Cape Girardeau, Mo., and Homer Hall, of St. Louis, Mo., for defendant.

HULEN, District Judge.

This is the second trial of this case. It was instituted to condemn land in the city of Cape Girardeau, Missouri. The Public Buildings Administrator has recommended an expenditure of $430,000 for the erection (post war) of a post office and court house on the proposed site. The issue is the right of the plaintiff to condemn the particular land described in the second amended petition. Iska W. Carmack, defendant, and heir of the donors of the land to the inhabitants of the city of Cape Girardeau has raised the issue. The first trial resulted in the Court holding that Iska W. Carmack had no interest that would permit her to raise and contest that issue. The Appellate Court held to the contrary and declared the law governing the right of plaintiff to condemn the land.¹

The evidence in this case as to Iska W. Carmack's interest is substantially the same as in the first trial. Her rights resulting therefrom having been heretofore decided, we will not go into that phase of the case.

In the opinion of the Court of Appeals the public use to which the property is now dedicated is described as follows: "The property is in the nature of a public park upon which is located a court house used by the Court of Common Pleas of Cape Girardeau County, a public library building, a bandstand, a memorial monument surrounded by a fountain, and a memorial monument to W. F. D. Bajer, the latter being in front of the library building. The park upon which these structures are located is used for gatherings * * * of various other groups. It is also used as a place for recreation, and is furnished with settees. The library is a public one, used by the public generally. The bandstand is not only used by the band in giving concerts, but is used for public speakings. The second story of the court house is occupied by the Common Pleas Court, a judge's chambers, and a law library for the court, the entire second floor being appropriated to the Common Pleas Court service. The first floor is occupied by various city officials, including the city clerk, the clerk of the Court of Common Pleas, the city engineer, the mayor, the city council and the city attorney. There is a basement in this building used largely for a storage place, in which to keep the files and records of the Court of Common Pleas. The Government seeks to condemn all the property with the improvements thereon, `except the library building.'"

The evidence as to the present public use of the proposed site, is the same as on the first trial. While "the property is in the nature of a public park", plaintiff does not "seeks to condemn all the property with the improvements thereon, `except the library building.'"

The property described in the petition is a tract approximately 280 by 240 feet, near the middle of the Public park and bounded on the west by Lorimier Street. The north line of this tract is 150 feet from the north line of the park, the south line is 84 feet from the south line of the park, thereby leaving a strip of park 150 feet wide on the north side of the proposed building site and a strip 84 feet wide on the south side of the proposed site. The park is bounded on the east by Spanish Street. Spanish Street is 40 feet below the level of the proposed site. To go from Spanish Street to the proposed site it is necessary to ascend approximately 60 steps. The east line of the proposed building site is near the top step, leaving approximately 100 feet between the east line of the proposed site and the east line of the city park. These strips of land thus remaining on the north, east and west, outside of the boundary lines of the proposed site are not sought by plaintiff and are to remain "park" property. (See Government Exhibit 5.) This is the property which the plaintiff desires to condemn and the public use to which it is now devoted.

We pass to the law as declared by the Court of Appeals, by which the claim of right to condemn, asserted by plaintiff and challenged by defendant, must be determined. The fact that the land sought to be condemned is now being used for public purposes does not as a matter of law exempt the property from condemnation for another public purpose. If the purpose for which the site is sought is of superior rank with respect to public necessity to the public use now being made of it, the plaintiff should prevail. If the land described in the petition, although now devoted to public purposes, were the only available property reasonably fitted for the public project and failure to secure it would result in failure of the public project described in the petition, there would be no question of plaintiff's right to proceed. The right of plaintiff to condemn the land must stand or fall on the determination by this court of the question, Did the Acting Administrator of Federal Works Agency and the Postmaster General, under the circumstances here presented, act arbitrarily and capriciously in selecting the site—was the act necessary? The term "arbitrarily and capriciously" has been defined to mean an act done "without adequate determining principle; not founded in the nature of things; not done or acting according to reason or judgment";² an unnecessary act. Defendant has the burden of proof.

The law under which plaintiff is proceeding provides that the Administrator of the Federal Works Agency and the Postmaster General must determine by their joint action location of sites upon which post offices are to be constructed. On the first trial there was a failure of proof of joint selection. It now appears no joint selection had been made prior to filing of the petition. Since the decision of the Court of Appeals, holding that proof of joint selection was a jurisdictional fact, the two public officers referred to have executed a site selection of the land described in the petition.

There is no evidence that either the Postmaster General or the Administrator of the Federal Works Agency were ever informed or even now know that the site selection that bears their signatures (U.S. Ex. 4) describes land that is a public park or that the land was devoted to any public use—except for a "library building". As to the library building, they had no knowledge as to its being subject to removal "on 30 days notice".

The method of selecting a post office site, during the period here involved, is for a "Joint Committee" of two, to make the selection, prepare the instrument so declaring and present it to the Postmaster General and Administrator of the Federal Works Agency for their signatures. Such was the practice followed in this case, except approval was given after the suit was instituted and not before. The "Joint Committee" consisted of the 4th Assistant Postmaster General and the Commissioner of Public buildings. The former acted by virtue of a statute, the latter acted pursuant to Administrative Order Number 1, dated July 1, 1939.

After designating Cape Girardeau as a place for construction of a new post office and court house, twenty-two sites were submitted by various interested parties. Following receipt of these proposals the Joint Committee sent to Cape Girardeau Post Office Inspector M. T. Deutsch, for the purpose of investigating and making a recommendation to the Joint Committee "an available, suitable and fitted site" for the new Federal building. Mr. Deutsch made his investigation and reported to the Join Committee on August 20, 1940. In due time the site described in the petition was selected by the Joint Committee. Its selection came about as a result of the representations by the officials of the city of Cape Girardeau, that they had a legal right to sell or exchange the park land.

Prior to Mr. Deutsch's visit to Cape Girardeau the city officials of that city conceived a plan of trading the court house park (of which the land described in the petition is a part) or a portion of it for the present "excellent" Federal building and submitted, as one of the twenty-two sites a proposal to that effect.

Without quoting the Deutsch Report in full, in part it refers to the "Disadvantages" of the Park site here in issue as follows: "This location is somewhat removed from the center of carrier delivery and the center of population, and is definitely not in the trend of future business expansion or growth. A new building here would face a side street with only fair residential property on the opposite side. In order to take advantage of symmetrical attractiveness with respect to surrounding streets, views, and buildings, it may be necessary to forego advantages, with respect to necessary approaches and drive-ways".

Comparing the park site (described in the petition) with other sites the report concludes:

"Considering the relative merits and the deterring features of the competing sites, I would give preference to the first three in the following order:

"First Choice—Present Government-owned site, including Bid Nos. 2 and 3.

"Second Choice—Site No. 1, the city-owned park.

"Third Choice—The northeast corner of Themis and Fountain Streets, including the Greene corner, and Bid Nos. 3, 7, and 9-A.

"It is my opinion that the present Government-owned site and adjoining ground is the most outstanding location in the city. Any of the other sites would be merely a compromise to avoid the demolition of the present federal building. While due regard must be given to public sentiment, it is obvious that the city park site, while it might provide an attractive setting, would...