United States v. KNOWLES'ESTATE, 6696.

• Citation: 58 F.2d 718
• Decision Date: 09 May 1932
• Docket Number: No. 6696.,6696.
• Parties: UNITED STATES v. KNOWLES' ESTATE et al.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

58 F.2d 718 (1932)

UNITED STATES v. KNOWLES' ESTATE et al.

No. 6696.

Circuit Court of Appeals, Ninth Circuit.

May 9, 1932.

Anthony Savage, U. S. Atty., and Hamlet P. Dodd, Asst. U. S. Atty., both of Seattle, Wash.

Before WILBUR and SAWTELLE, Circuit Judges, and ST. SURE, District Judge.

SAWTELLE, Circuit Judge.

On behalf of the War Department, the United States brought this action for the acquisition of certain tide lands near Ft. Lewis, Wash. The land was adjudged necessary for public use, and the jury awarded the owners $9,000 as the value of the property. The owners filed a cost bill of $598.70; the greater portion of the amount being for expert witness fees. The cost bill was disallowed by the District Court, save for a sum less than $100. From that portion of the judgment awarding any costs whatsoever against the government, this appeal has been brought. The appellees have filed no brief in this court.

The petition filed by the government in the condemnation proceedings in the court below recites that they are based upon the Act of May 16, 1906, 34 Stat. L., pt. 1, page 196 (33 USCA § 592). The government's brief, however, makes no mention of that act, but seems to rely upon the Act of July 2, 1917, 40 Stat. L. 241 (50 USCA § 171). The latter act contains the following provision: "* * * such proceedings to be prosecuted in accordance with the laws relating to suits for the condemnation of property of the States wherein the proceedings may be instituted."

The act of 1906 contains no similar provision.

Inasmuch as the right of the court to tax costs against the United States, and not merely an abuse of its discretion in so doing, is challenged, the appeal is proper. Newton, etc., v. Consolidated Gas Co., etc., 265 U. S. 78, 83, 44 S. Ct. 481, 68 L. Ed. 909; In re Michigan Cent. R. Co. (C. C. A. 6), 124 F. 727, 733.

In the absence of a statute directly and specifically so authorizing, costs cannot be assessed against the United States. This rule has been repeatedly stated by the Supreme Court, from the time of Chief Justice Marshall to the present day.

In United States v. Hooe et al., 3 Cranch, 73, 92, 2 L. Ed. 370, in which Chief Justice Marshall delivered the opinion, the court "directed the decree of the court below to be affirmed, except as to costs, and reversed so much of the decree as awarded the United States to pay costs, and directed that no costs be allowed to either party in this court." The syllabus states that "costs are not to be awarded against the United States."

For more than a century and a quarter, the Supreme Court has adhered to this rule; one of the latest expressions being found in United States v. Worley, etc., et al., 281 U. S. 339, 344, 50 S. Ct. 291, 293, 74 L. Ed. 887:

"4. May costs be awarded generally against the United States, upon condition that they be paid from accumulated funds in the hands of the Veterans' Bureau, if any, available for that purpose?

"The rule is that, in the absence of a statute directly authorizing it, courts will not give judgment against the United States for costs or expenses. United States v. Chemical Foundation, 272 U. S. 1, 20, 47 S. Ct. 1, 71 L. Ed. 131. There is no statute permitting costs to be awarded against the government in this case.

"The question should be answered in the negative."

In Davis, etc., v. Corona Coal Co., 265 U. S. 219, 222, 44 S. Ct. 552, 553, 68 L. Ed. 987, Mr. Justice Holmes made reference to "the familiar rule * * * that the United States should not be held to have waived any sovereign right or privilege unless it was plainly so provided."

In United States v. Chemical Foundation, Inc., supra, the court said, at page 20 of 272 U. S., 47 S. Ct. 1, 8, 71 L. Ed. 131: "The general rule is that, in the absence of a statute directly authorizing it, courts will not give judgment against the United States for costs or expenses. Cases cited."

See, also, Shewan, etc., Inc. v. United States, 267 U. S. 86, 87, 45 S. Ct. 238, 69 L. Ed. 527; Stanley v. Schwalby, 162 U. S. 255, 272, 16 S. Ct. 754, 40 L. Ed. 960; Reeside v. Walker, etc., 11 How. 272, 289, 13 L. Ed. 693; United States v. Boyd et al., 5 How. 29, 50, 12 L. Ed. 36; United States v. McLemore, 4 How. 286, 288, 11 L. Ed. 977; Island Development Co. et al. v. McGeorge (C. C. A. 3) 37 F.(2d) 345.

It is necessary, therefore, to address ourselves to the question of whether or not the provision in the act of 1917, quoted above, "directly authorizes" a court to give judgment against the United States for costs, in proceedings of this nature.

As we have seen, the act of 1917 provides that such proceedings should be "prosecuted in accordance with the laws relating to suits for the condemnation of property of the States wherein the proceedings may be instituted." 1 Rem. Comp. Stat. 1922, § 900, page 604, of the state of Washington, reads as follows: "Whenever the attorney general shall file with the auditor of this state a certificate setting forth the amount of any award found against the state of Washington under the provisions of this act, together with the costs of said proceeding, and a description of the lands and premises sought to be appropriated and acquired, and the title of the action or proceeding in which said award is rendered, it shall be the duty of the state auditor to forthwith issue a warrant upon the state treasury to the order of the attorney general in a sum sufficient to make payment in money of said award and the costs of said proceeding, and thereupon it shall be the duty of said attorney general to forthwith pay to the clerk of said court in money the amount of said award and costs."

It will be observed that the foregoing statute makes no reference to the government of the United States. It contains directions merely for the guidance of state officers. Can it be argued that it authorizes payment of costs by the United States?

This question was answered by the Supreme Court, in connection with a state statute of limitations, in United States v. Thompson, 98 U. S. 486, 488, 489, 25 L. Ed. 194. In that case the court said:

"This case turns upon a statute of the State of Minnesota which bars actions, ex contractu, like this, within a specified time, and the same limitation is applied by the statute to the State. The United States are not named in it. The court below held that the statute applied to the United States, and rendered judgment against them. * * *

"The United States possess other attributes of sovereignty resting also upon the basis of universal consent and recognition. * * * If they sue, and a balance is found in favor of the defendant, no judgment can be rendered against them, either for such balance or in any case for costs. * * *

"The United States not being named in the statute of Minnesota, are not within its provisions. It does not and cannot `apply' to them." (Italics our own.)

We find it significant that in the foregoing case the Supreme Court should have used the example of costs to illustrate the attributes of the sovereign.

In United States v. Wade et al., and three other cases, 40 F.(2d) 745, 746, the late Judge Dietrich, at that time on the district bench in Idaho, but later a member of this court, was confronted with a state statute similar to the one involved in the instant suit: "Costs may be allowed or not, and, if allowed, may be apportioned between the parties on the same or adverse sides in the discretion of the court." Idaho Comp. Stat. 1919, § 7421.

In passing upon the applicability of that statute to the United States, Judge Dietrich said: "I have sought earnestly to find some ground upon which I could make an exception to the general rule that costs cannot be awarded against the government in litigation to which it is a party. I am inclined to think that under the state statute (Comp. St. Idaho 1919, § 7421) in respect to costs in condemnation proceedings, costs should be equitably apportioned within the discretion of the court as the facts warrant, and such I think is a fair rule; but there really does not seem to be any more reason for awarding costs against the government in a condemnation proceeding than in any other class of litigation. If the government brings an unfounded suit against a citizen upon any other alleged cause of action, and is unsuccessful, it turns out, under the general rule prohibiting costs against the government, that the citizen has been put to costs in defending a right which the government has wrongfully assailed. A property right in real estate is no more sacred than any other property right, and the reasons for allowing costs...