United States v. Miller

• Decision Date: 13 October 1928
• Docket Number: No. 8026.,8026.
• Citation: 61 ALR 405,28 F.2d 846
• Parties: UNITED STATES v. MILLER.
• Court: U.S. Court of Appeals — Eighth Circuit

61 ALR 405, 28 F.2d 846 (1928)

UNITED STATES v. MILLER.

No. 8026.

Circuit Court of Appeals, Eighth Circuit.

October 13, 1928.

E. O. Patterson, Solicitor of Interior Department, and E. T. Burke, Attorney of Department of Justice, both of Washington, D. C. (B. M. Parmenter, Asst. Atty. Gen., on the brief), for the United States.

Allen McReynolds, of Carthage, Mo. (John Thornberry, of Joplin, Mo., on the brief), for defendant in error.

Before KENYON, Circuit Judge, and SYMES and MARTINEAU, District Judges.

KENYON, Circuit Judge.

In the year 1915 one Gillihan, who had made a homestead entry upon certain government land in the state of Arkansas, cut and sold timber therefrom to one Montgomery, who in turn sold the same to defendant in error. Gillihan's homestead entry never was perfected. This suit was brought to recover the value of the timber. Demurrer was filed to the petition on the ground that the same showed the cause of action arose in 1916 in the state of Arkansas, that this case was not commenced until July, 1925, and was therefore barred by the statutes of limitation of Arkansas as well as Missouri, where the case was brought. The trial court sustained the demurrer and entered judgment in favor of defendant in error. The government brings this writ.

That the government had the right to bring the action to recover the value of the timber cut and carried away from its public lands cannot be questioned. The homestead entry never having been perfected, no patent had been issued, and the timber remained the property of the United States. United States v. Gardner (C. C. A.) 133 F. 285; United States v. Cook, 19 Wall. 591, 22 L. Ed. 210; Shiver v. United States, 159 U. S. 491, 16 S. Ct. 54, 40 L. Ed. 231; Stone v. United States, 167 U. S. 178, 17 S. Ct. 778, 42 L. Ed. 127.

The only proposition here involved is whether the statutes of limitation of Arkansas, where the cause of action arose, or of Missouri, where suit was brought, apply to the government's case. If so, the decision of the trial court was correct.

Can the government of the United States, under the facts disclosed by the petition, recover, unhampered by statutes of limitation of a state, for timber unlawfully taken from the public domain? While the government of the United States is one of delegated and limited power, and the rights not granted to the government are reserved to the states, yet within the sphere of that delegated power the government of the United States is clothed with all attributes of sovereignty, except as limited by the Constitution. It is supreme in the exercise thereof, and cannot be hampered, impeded, or defeated by state legislation. In the noted case of McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579, Chief Justice Marshall, the most profound interpreter of the Constitution this country has ever known, pointed out that the people in forming this government had no intention of making the national government dependent on the states. While embarrassing and grave difficulties have arisen as a result of our dual system of government, it is happily true, as once said by that same great Justice, referring to the federal government: "Its powers are unquestionably limited; but while within those limits, it is a perfect government as any other, having all the faculties and properties belonging to a government, with a perfect right to use them freely, in order to accomplish the object of its institution."

So it is that the United States, in asserting governmental rights vested in it as a sovereign, is not bound by statutes of limitation of a state, unless the Congress has clearly manifested that intention. In Davis v. Corona Coal Co., 265 U. S. 219, 222, 44 S. Ct. 552, 553 (68 L. Ed. 987), it is said: "Also it is established that a state statute of limitations cannot bar the United States, at least when a suit is brought in the United States courts." In Chesapeake & Del. Canal Co. v. United States, 250 U. S. 123, 125, 39 S. Ct. 407, 408, (63 L. Ed. 889), "It is settled beyond controversy that the United States, when asserting `sovereign' or governmental rights, is not subject to either state statutes of limitation or to laches." In United States v. Beebe, 127 U. S. 338, 344, 8 S. Ct. 1083, 1086 (32 L. Ed. 121): "The principle that the United States are not bound by any statute of limitations, nor barred by any laches of their officers, however gross, in a suit brought by them as a sovereign government to enforce a public right, or to assert a public interest, is established past all controversy or doubt." In United States v. Thompson, 98 U. S. 486, 490 (25 L. Ed. 194): "If the states can pass statutes of limitation binding upon the federal government, they can by like means make it suable within their respective jurisdictions. The evils of such a state of things are too obvious to require remark." In United States v. Norris, 222 F. 14, 18, this court said: "The state statute of limitations does not, of course, bar suits of the United States brought in their own courts in their sovereign capacity to assert a public interest or to enforce a public right." The Falcon (D. C.) 19 F.(2d) 1009; United States v. Seaboard Air Line Ry. Co. (C. C. A.) 22 F.(2d) 113; United States v. Harpootlian (C. C. A.) 24 F.(2d) 646; United States v. Nashville & C. Ry. Co., 118 U. S. 120, 6 S. Ct. 1006, 30 L. Ed. 81; United States v. Insley, 130 U. S. 263, 9 S. Ct. 485, 32 L. Ed. 968; Redfield v. Parks, 132 U. S. 239, 10 S. Ct. 83, 33 L. Ed. 327; United States v. Whited & Wheless Ltd. et al., 246 U. S. 552, 38 S. Ct. 367, 62 L. Ed. 879; United States v. Minnesota, 270 U. S. 181, 46 S. Ct. 298, 70 L. Ed. 539.

Defendant in error's theory is that, as there is no statute of the United States authorizing the procedure here brought, the government is enforcing a mere property right given to it by the laws of Arkansas; that it is not acting in any sovereign capacity, and therefore the statute of limitations of Arkansas applies and bars the action. The reliance of defendant in error is a decision of this court. Denver & R. G. R. Co. v. United States, 241 F. 614. The trial court based its conclusion upon that decision, holding there was no difference in principle between the two cases. That leads us to a consideration of that case.

The action there was brought by the government, under an act passed by the Legislature of Colorado, which rendered railroad companies liable for damages resulting from fires set by them, regardless of any question of negligence, to recover for damage to timber on land owned by it caused by a fire set by the railroad company. The Supreme Court of Colorado in originally passing on this statute held that the remedy created was not exclusive. Smith v. Denver & R. G. R. Co., 54 Colo. 288, 130 P. 1009. In a later decision, Rhinehart et al. v. Denver & R. G. R. Co., 61 Colo. 369, 158 P. 149, it held that the action created by the statute was exclusive and superseded the common-law right of action. The Colorado act, in creating the right to sue and recover, regardless of negligence, imposed a condition that the suit must be brought within two years.

This court held in Denver & R. G. R. Co. v. United States, supra, that the statute of Colorado imposing an absolute liability created a cause of action which did not exist at common law, and that the provision that suit must be brought within two years acted as a limitation of the liability, and pointed out that this differed from ordinary statutes of limitation which affect the remedy alone; that, there being no legislation by Congress providing for the right of action, the plaintiff could recover only by virtue of some statute or under the common law as adopted by the particular state, and based its decision holding the statute of limitation applicable on the theory that, as the government brought its action under the statute, it was bound by the limitations thereof. As the Supreme Court of Colorado had held that the statutory remedy was exclusive; that theory would, of course, be followed by this court, and the United States, seeking to recover for a loss under that statute, would be confined to the right given thereby. But that is not holding that the limitation provided in the act was the same as a general statute of limitations, which is concerned only with a remedy to enforce a right — not with the creation of one.

This court said in Denver & R. G. R. Co. v. United States, supra (241 F. 617): "The statute provides that suit must be brought within two years, and we think a failure to bring the suit within the time prescribed by the statute acts as a limitation of the liability itself, and in this respect differs from the ordinary statutes of limitation which affect the remedy only." Also (page 618): "The time fixed by the statute within which an action may be brought is a condition of the right to sue at all, and a complaint which fails to state that the action was brought within that time fails to state a cause of action and is subject to demurrer." This is in line with practically all decisions on the question.

The Supreme Court of the United States, in Davis v. Mills, 194 U. S. 451, 454, 24 S. Ct. 692, 693 (48 L. Ed. 1067), said: "But in cases where it has been possible to escape from that qualification by a reasonable distinction courts have been willing to treat limitations of time as standing like other limitations and cutting down the defendant's liability wherever he is sued. The common case is where a statute creates a new liability and in the same section or in the same act limits the time within which it can be enforced, whether using words of condition or not. The Harrisburg, 119 U. S. 199 7 S. Ct. 140, 30 L. Ed. 358. But the fact that the limitation is contained in the same section or the same statute is material only as bearing on construction. It is merely a ground for saying that the limitation goes to the right created and accompanies the obligation...