author: WILLIAMS, Circuit Judge.

text:
    UNITED STATES v. STATE BANK OF WINFIELD, KAN., et al.
    No. 509.
    District Court, E. D. Oklahoma.
    Oct. 23, 1944.
    Cleon A. Summers, U. S. Atty., and William H. Landram and Francis Stewart, Asst. U. S. Attys., all of Muskogee, Okl., for the United States.
    W. Joe Hulsey and H. I. Aston, both of McAlester, Okl., for defendants.
   WILLIAMS, Circuit Judge.

This is an action by the United States of America for the Choctaw and Chickasaw Nations against the City of McAlester, a municipal corporation, James Troy McAlester, J. J. McAlester Mercantile Company, a corporation, Otto Sites, A. F. & A. M. Lodge No. 9 of McAlester, Oklahoma, and other defendants, for the possession of property which prior to October 25, 1904, was a part of the east side of the right-of-way and station grounds of the Missouri, Kansas & Texas Railway Company, a Kansas corporation, at McAlester, Choctaw Nation, under, approval by the Secretary of the Interior Department of the United States on January 19, 1880, of a grant for right-of-way and station grounds to the said Railway Company, a certified copy of which was introduced in evidence on the hearing of this case (Exhibit A). Said part of the said right-of-way and station grounds on October 25, 1904, was quit-claimed by said railway company to defendants and others and platted into blocks 118A and 85A containing lots (1 to 25, inclusive) by the City of McAlester and by it quitclaimed'to the several defendants, as disclosed by the evidence introduced on the trial, except the north 25 feet of lot 9 in block 85A upon which part of said tract or lot the City of McAlester retained and thereon caused to be constructed and maintained and has now located thereon a fire station.

Among the questions involved is whether the said lands granted to the said railway company under Act of Congress of the United States of July 25, 1866, 14 Stat. 236, for right-of-way and station purposes, etc., was in accordance with articles 6 and 8 of the Treaty of April 28, 1866, 14 Stat. 771, 772, proclaimed on July, 10, 1866, and other Acts of Congress and the Constitution of the United States. On account of the approval of the grant to the railway company by the said Secretary of the Interior on January 19, 1880, such right-of-way and station grounds became vested in the said railway company and has not reverted to the Choctaw and Chickasaw Nations.

Under Section 3, Article 4, of the Constitution of the United States, the Congress of the United States may dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. Irvine v. Marshall & Barton, 20 How. 558, 61 U.S. 994, 15 L.Ed. 994 and Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331, Muskogee Nat. Telephone Co. v. Hall, 8 Cir., 1902, 116 F. 382.

The tract consisting of said 85A and 118A (Exhibit A) about 1730 feet in length and 130 feet in width, divided into lots 1-25, inclusive, formerly part of the said granted and approved right-of-way and station grounds of the Missouri, Kansas & Texas Railway, a Kansas corporation, was about October 25, 1904, by quitclaim by said railway company, a Kansas corporation, granted to a number of parties, defendants hereto, and question is further suggested that said tract subsequently under receivership proceedings was acquired by the said Missouri, Kansas & Texas Railway, as a Missouri corporation, at a receivership sale at a date subsequent to April 26, 1906.

In 1907 the City of McAlester, Oklahoma, after the passage of Section 14 of Act of April 26, 1906, 34 Stat. 142, quit-claimed the land as divided into lots with the exception of a part of said lot in block 85A, to the said several defendants. The improvements upon the said land or lots were valued in appraisement by J. D. Fulton, acting under direction of the Superintendent of the Five Civilized Tribes by direction of Commissioner of Indian Affairs, between August, 1927, and January, 1930, the appraisement of the improvements thereon approximating $75,000 and the value of the lots being separately approved and being appraised by him at $3,910.

The said quitclaimed conveyances by the Missouri, Kansas & Texas Railway Company were executed on October 25, 1904, about 18 months prior to the Act of April 26, 1906, 34 Stat. L. 137.

The Commissioner of Indian Affairs of the United States caused said survey to be made of said blocks 85A and 118A and the several lots thereof as aforesaid as shown by said survey and were appraised and the said valuation made by the said J. D. Fulton, acting under the Commissioner of Indian Affairs, with the valuation placed on such lots with regard to such values as were made in 1904 by the Choctaw Town-site Commission when the original townsite surveys and appraisements were made and completed for the McAlester Townsite (Exhibit B). Under said plan such person or persons entitled to such lots after appraisements were to be notified and given a preferential right to receive deed to the same as was done as to similar lots by and under said Townsite Commission and holders of said lots after appraisement were to be notified and given a preferential right to receive deed to the same as was done as to similar lots by said Townsite Commission, and if such rights were not exercised under said appraisement within 60 days from the date of notice all lots not paid for were to be offered at public auction to the highest and best bidder, in accordance with the rules and practice of the original Choctaw Townsite Commission (see paper from Commissioner of Indian Affairs dated Jan. 11, 1927, approved by Assistant Secretary of the Interior with provision that title be quiet before any sale [Exhibits D and E]).

Under the direction of the Commissioner of Indian Affairs, J. D. Fulton, an appropriate employee under the Superintendent of the Five Civilized Tribes, appraised the lots on said land.

I find that said deeds were without any consideration under conditions as to the quitclaims in favor of the Choctaw and Chickasaw Nations and delivery to J. D. Fulton, the representative of the United States Interior Department in contemplation of settlement of the matter in controversy as set out in said Exhibits D and E, and are void and of no effect, same being as follows:

“Exhibit ‘D’

“Refer in reply 5 — 1100 Address only the to the following Commissioner of

Indian Affairs

“United States

“Department of the Interior

“Office of Indian Affairs

“Washington

“Jan. 11, 1927

“To Honorable The Secretary of the Interior.

“My dear Mr. Secretary:—

“There is transmitted herewith certain data relative to the sale of real estate in the city of McAlester, Oklahoma. The record shows that two tracts of land are involved, about 1730 feet long and 130 feet wide. The land was formerly part of the right-of-way and station grounds of the Missouri, Kansas and Texas Railway, a Kansas Corporation, which corporation, about October 25, 1904, attempted, by quit claim deeds, to convey the land to a number of individuals who had erected improvements thereon. Subsequent to this alleged sale the properties of the Kansas Corporation, under receivership proceedings, were acquired by the Missouri, Kansas and Texas Railway, a Missouri corporation.

“In 1907 the City of McAlester, Oklahoma, divided the land in question into blocks and lots, numbered the blocks 85A and 118A containing lots from 1 to 25, inclusive. The improvements upon the land are valued at approximately $75,000. It appears that the city of McAlester and the state of Oklahoma refuse to assess taxes on the land in question because they assert that it is tribal property.

“The quit claim deeds given by the Kansas corporation indicated above, it will be noticed, were executed about 18 months prior to the Act of April 26, 1906 (34 Stat. L. 137), becoming a law. In connection herewith attention is invited to Section 14 of this Act.

“The views, as set out in the report upon this matter from our office at Muskogee, Oklahoma, transmitted herewith are concurred in.

“It is recommended that authority be granted to cause a survey to be made of Blocks 85-A and 118-A, indicated above and that the several lots shown by such survey be appraised according to a valuation that would have been placed thereon in 1904, and when such survey and appraisement have been completed that such person or persons claiming title to any lot or lots be notified and given a preferential right to purchase the same at the appraised value thereof. If such preferential right be not exercised within 60 days from the date of notice that all lots not paid for shall be offered at public auction to the highest and best bidder therefor.

“Respectfully,

“Chas. H. Burke

“Commissioner.

“Approved: provided title be granted before any sale.

“Jan. 18 1927

“John H. Edwards

“Assistant Secretary.”

“Exhibit ‘E’

“Department

“Received

Feb 19 1926

“L-C 1001

“5334 — 26 Supt. Five

“C H I Feb-3 1926 Civilized

“Hon. C. D. Carter,

House of Representatives.

“My dear Mr. Carter:

“Receipt is acknowledged of your letter of January 30, 1926, making inquiry concerning title to certain lands within the town of McAlester, Oklahoma, which you understand have now been abandoned by the M., K. & T. Ry. Co.

“In Section 14 of the Act of Congress approved April 26, 1906 (34 Stat.L. 137), it is in effect provided that upon abandonment of any lands in the Five Civilized Tribes, reserved from allotment or sale under any Act of Congress for railroad or other purposes, title thereto shall vest in the owner of the legal subdivision of which the land so abandoned is a" part, except lands within a municipality, the title to which upon abandonment shall vest in such municipality.

“In view of the foregoing it seems that the Government is without jurisdiction to validate the titles claimed by the settlers mentioned in your letter.

“A copy of this letter is enclosed for your convenience.

“Cordially yours,

“(Signed) Chas. H. Burke

“Commissioner.”

Substantial improvements were placed in good faith by the holders of said lots on the lots covered by the quitclaim instruments, the parties thereunder holding adversely to all others whatever. There is no contention that the improvements were not on the lots when the quitclaims were ■executed as aforesaid. I find all Exhibits C-l-15 were without any consideration, and are void and ineffective under conditions under which executed and which were delivered to Fulton, the representative of the Interior Department, on account of the proposal of settlement with the view of a ■compromise or adjustment and that titles did not and were not complied with and did not unconditionally pass, and did not pass. I find that the title did not pass by virtue of said instruments and that same are without effect and void.

Neither the Mayor nor the City Clerk nor any agent of the City of McAlester were ever authorized to execute same nor were they permitted to authorize the execution of any of said instruments. The City Council in no manner authorized execution of same and same were not executed by any agent or any one authorized to so act on the part of the Masonic Lodge, to-wit: A. F. & A. M. Lodge No. 9, a defendant, or said municipality. Same was neither authorized to be executed in any way on the part of said city nor on part of said Lodge. The Masonic Lodge claims to be the owner of lot 6 in block 118A and placed all of the improvements thereon. That part of the right-of-way and station ground was conveyed to the defendants by the Missouri, Kansas & Texas Railway Company, a Kansas corporation, about October 25, 1904, by quitclaim and, in lieu thereof and as consideration, therefor, the ■defendants, with their neighbors, purchased lots on the west side of the right-of-way and station grounds within the town of Mc-Alester that the Railroad "Company desired for its use as a railroad for switch yards, ■etc., and additional station grounds and conveyed same to the Railroad Company and it was in consideration therefor that the Railroad quitclaimed these lots off of ■the east side of its station grounds contained in blocks 118A and 85A to the defendants. It was with that understanding and for that consideration of the property .on the west side that these quitclaims were •executed to the defendant by the railroad .company in lieu of the property located immediately on the west side thereof and adjacent thereto and considered as being more suitable for its use for railroad switch yards and station grounds and its railroad purposes and I find that in consideration for said property, to-wit: lots 1 to 25, inclusive, in blocks 85A and 118A, same were conveyed by the railroad company, in lieu of said property on the west side for its use. The date of this transaction between the railroad company was about October 25, 1904.

The improvements on and lots 10 and 11 of block 85A and lots 4, 6, and 7 of said block belonged to the J. J. McAlester Mercantile Company as aforesaid accordingly quitclaimed by the railroad company to said defendant and lot 6 was also acquired from the railroad company in the same manner and under same conditions and consideration. The title of all defendants was deraigned from the railroad company and by and from the common source beginning with the quitclaim from the said railroad company.

On July 26, 1929, lots 4, 6,7, 10 and 11 of block 85A were deeded by the J. J. Mc-Alester Company, by its vice president, Otto Sites, to the Choctaw and Chickasaw Nation, conditional, under an agreement and promise, the United States would cause patents therefor to issue to defendants for said lots, and it was on that plan under which J. D. Fulton, a representative of the Interior Department through the Superintendent of the Five Civilized. Tribes, acted with the understanding that such quitclaims were not to be placed on record or if made a matter of record not to be effective until patents on the part of the United States Government in lieu thereof were issued, but were to be held pending the negotiations when patents under such agreement, which complainant has not kept, were to be issued in favor of defendants. In the conditional plan the property was to be appraised and for the business property 62%% of the appraised value was to be paid to complainant and 50% of the appraised value of the residence property to be paid to complainant, but same has not yet been consummated on the part of the complainant but it has refused to do so. Fulton was an employee in the Union Agency of the Five Civilized Tribes. The appraisement was made and introduced without objection. The patents were never offered to nor tendered for defendants. Defendants were never notified or permitted to pay the respective per centum of the appraised value. It was only after this trial was first begun and after amendment of pleadings tendered on the part of complainant that these deeds, executed as disclosed at the first part of the hearing, were placed of record and same have no binding force in favor of the Choctaw and Chickasaw Nations, nor as against the defendants. The property on lot 10, residence property, was appraised at $86, and being residence lot the payment would be $43 and the building located on it was of the reasonable value of $7,000 and lot 11 was appraised at $220 and 50% is $110, a stone building of the value of $9,-000 being on the lot, and the defendants offered to pay all these respective sums on the appraisement and made tenders of same. These facts are mentioned as illustrative of the agreement. The tenders made in accordance with the agreement made with Fulton have been refused and including tenders made as to other defendants, and acceptance thereof declined.

The land on which lots described as parts of blocks 85A and 118A, in the City of Mc-Alester, Oklahoma, was ceded originally on October 18, 1820, 7 Stat. 210, arts. 1, 2, 3, by the United States to the Choctaw Nation. On January 17, 1837 the Chickasaw Nation acquired an interest in the lands of the Choctaws, and in 1842 a patent therefor was issued to the Choctaw and Chickasaw Nations. By Treaty of June 22, 1855, proclaimed March 4, 1856, 11 Stat. 611, the two Nations agreed that the United States or any incorporated company shall have right-of-way for railroad or telegraph lines through said Choctaw and Chickasaw lands, but for any property taken or destroyed in the construction thereof full compensation shall be made.

The Union Pacific Railroad Company, southern branch, which later became the M. K. & T. R. Company, a Kansas corporation, obtained the right to construct its lines through Indian Territory through the said Choctaw and Chickasaw Nations under the provisions of the said Act of July 25, 1866, Missouri, K. & T. R. Co. v. United States, 235 U.S. 37, 35 S.Ct. 6, 7, 59 L.Ed. 116, “The right of way was granted in accordance with treaties with the Indians”, and the road was completed in 1871 and on January 19, 1880, the Secretary of the Interior approved said station ground, site, etc., which included the lots in question, as a part of its right-of-way and station ground site. In 1904 the railroad company executed quitclaim deeds conveying certain parts of the said right-of-way in lieu of other and as consideration for right-of-way, switch ground, etc., adjacent and on its west side as located in the City of Mc-Alester, to various parties. In 1907 the City of McAlester, after passage of Section 14, April 26, 1906, quitclaimed from the said right-of-way, etc., land therefrom and as contained in said blocks and lots executed its quitclaim deeds to parties on which the improvements are located as described in Exhibit B, except as to the north 25 feet as blocks 118A & 85A of lot 10 in block 85A, upon which the City of McAlester has caused to be built and maintains a fire station.

The railroad company, as a defendant in this action, filed disclaimer as to the lots in blocks 85A and 118A. As to the question whether section 14 of the Act of April 26, 1906, applies under the facts of this case, it is here concluded that it does.

By treaty, proclaimed July 10, 1866, art. 6, 14 Stat. 769, 771, it is provided that: “The Choctaws and Chickasaws hereby grant a right of way through their lands to any company or companies which shall be duly authorized by Congress * * * and which shall, with the express consent and approbation of the Secretary of the Interi- or, undertake to construct the railroad. through the Choctaw and Chickasaw nations * *

By Section 6 of the Act of July 25, 1866, c. 241, 14 Stat. 236, the predecessor, successor, and assignor of the M., K. & T. R. Co. of Kansas, now the M., K. & T. R. Co. of Missouri, was granted' a right-of-way, including sites for station grounds for railroad purposes, in which it is provided: “And be it further enacted, That the right of way through the public lands be, and the same is hereby, granted to said Kansas and Neosho Valley Railroad Company, its successors and assigns, for the construction of a railroad as proposed; and the right is hereby given to said corporation to take from the public lands adjacent to the line of said road material for the construction thereof. Said way is granted to said railroad to the extent of one hundred feet in width on each side of said road where it may pass through the public domain; also all necessary ground for station buildings, workshops, depots, machine-shops, switches, side-tracks, turn-tables, and water stations.” (Italics supplied). Section 6.

Section 8 of the said Act of July 25, 1866, provided that the right-of-way granted by section 6 through lands which have not been reserved for the United States but which are reserved for Indian Tribes shall be granted only after the railroad procured the consent of the tribes concerned, which consent was given in this case in said Treaty of July 10, 1866 (as proclaimed), and the railroad was in compliance with said treaty constructed by the said Missouri, Kansas & Texas Railroad Company as before stated. The land or lots deeded by defendants or citizens of McAlester for defendants in lieu of and for the lots embraced in blocks 85A and USA had been, as admitted on the trial, prior to that time freed from tribal restrictions or claims. And as disclosed by exhibits and inspection and admission in open court, was of equal or greater area and by statements made in open court and not controverted at the hearing was of equal or greater value for railroad yards and switches and station ground on the west side immediately adjacent as a part thereof for railroad right-of-way and station grounds and switch yards, etc., and of equal and greater value than that quit-claimed from the east side of the railroad right-of-way and depot site to the defendants.

The defendants, McAlester Lodge No. 9, A. F. & A. M. and the City of McAlester, and other defendants, hold their titles by direct grant or quitclaim from the M., K. & T. Railway Company, in good faith for value, and have been in adverse possession thereof thirty-nine years, having made good and valuable valued improvements thereon, paying all improvement taxes, such as paving and sewer, such property as the Masonic property and the property of the municipality not being subject to ad valor-em taxation.

In Irvine v. Marshall and Barton, 20 How. 558, 61 U.S. 558, 15 L.Ed. 994, the syllabi is as follows:

“All the lands in the Territories, not appropriated by competent authority before they were acquired, are in the first instance the exclusive property of the United States, to be disposed of to such persons, at such times, and in such modes, and by such titles, as the government may deém most advantageous.

“A Territory cannot, by its law, interpose and dictate to the United States, to whom, and in what mode, and by what title, the public lands shall be conveyed, or denounce a forfeiture.”

In the opinion, it is said: “The point was well put by Judge Barbour, in delivering the opinion of the court in Wilcox v. Jackson, 13 Pet. [498, 10 L.Ed. 264] ‘We hold,’ he observed, ‘the true principle to be this: that whenever the question in any court, State or Federal, is, whether the title to the land which had been once the property of the United States has passed, that question must be resolved by the laws of the United States; but that, whenever according to those laws the title shall have passed, then that property, like all other property in the State, is subject to State legislation, so far as that legislation is consistent with the admission that the title passed according to the laws of the United States.’ ”

See 9 Fed.Stat.Ann. 202.

In opinion of the Attorney General of the United States is as follows: “The term [‘to dispose of’] was adopted from the ordinance of 1785, and comprehends every mode by which the lands and other property of the United States could be parted with by the government, whether by sale, gift, or for any limited interest.” Leases of Mineral Lands on Isle Royale. (1846), 4 Op.Atty.Gen. 480, 487. See also Shively v. Bowlby, 1894, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331, and Muskogee National Telephone Co. v. Hall, 1902, 8 Cir., 118 F. 382.

In Missouri, Kansas & Texas R. Co. v. Roberts, 152 U.S. 114, 14 S.Ct. 496, 38 L.Ed. 377, it was held that such specific grant of a right-of-way through any such reserved lands, same grant as contained in the proviso to the said act of July 25, 1866, granting lands to aid in the construction of the Union Pacific Railway, southern branch, vested in that company the full title and right of possession, to a right-of-way located through the Osage Indian reservation, the grant being approved by the president.

In the opinion in the said Roberts case, supra, the land for railway purposes was under the identical grant involved in the instant case, and there expressly recognized as passing title in fee of the right-of-way and station grounds, etc., to the railroad company. In Missouri, Kansas & Texas R. Co. v. Oklahoma, 271 U.S. 303, 46 S.Ct. 517, 70 L.Ed. 957, the identical grant was involved with reference to the same station grounds and right-of-way, side tracks and switch grounds, in McAlester, Oklahoma, and it was there expressly held that title of right-of-way and depot site, etc., were vested in fee in the railroad.

Said blocks 85A and 118A, a part of said railroad right-of-way and station site, were quitclaimed for immediate adjacent land on the west side to become a part of the railroad right-of-way and station grounds on the said adjacent west side for railroad trackage and switching ground, station site, etc., and which were equal or greater in area and value than blocks 85A and 118A, and the title become vested in fee in the M. K. & T. Railway Company, and has been held by defendants adversely for over thirty years and the Statute of Limitation bars this action. Act of March 3, 1891, c. 1891, c. 561, 26 Stat. 1099, amended on March 2, 1896, Ch. 39, Sec. 1, 29 Stat. at Large, 42, 43 U.S.C.A. §§ 900, 1166. See Notes 1, 15, 16, 18 under said Sec. 1166.

Section 14 of Act of April 26, 1906, c. 1876, 34 Stat.L. 137, entitled “An Act to provide for the final disposition of the affairs of the Five Civilized Tribes in the Indian Territory, and for other purposes”, provides for the final disposition of all the tribal properties and the complete abolition of the tribal government and the lands of the Choctaw, Chickasaw, Cherokee, Creek and Seminole Nations reserved from allotment and sale under any Act of Congress for the use and benefit of any person or corporation or organization shall be conveyed to the person, corporation or organization entitled thereto: “Provided, That if any tract or parcel thus reserved shall before conveyance thereof be abandoned for the use for which it was reserved by the party in whose interest the reservation was made, such tract or parcel shall revert to the tribe and be disposed of as other surplus lands thereof: Provided further: That this section shall not apply to land reserved from allotment because of the right of any railroad or railway company therein in the nature of an easement for right of way, depot, station grounds, water stations, stock yards or other uses connected with the maintenance and operation of such company’s railroad, title to which tracts may be acquired by the railroad or railway company under rules and regulations to be prescribed by the Secretary of the Interior at a valuation to be determined by him; but if any such company shall fail to make payment within the time prescribed by the regulations or shall cease to use such land for the purpose for which it was reserved, title thereto shall thereupon vest in the owner of the legal subdivision of which the land so abandoned is a part, except lands within a municipality the title to which, upon abandonment, shall vest in such municipality.” (Italics supplied.)

Under Section 14 the title to abandoned rights-of-way within municipalities vesting in the municipality, the defendants hold title not only from the railroad company by virtue of its quitclaim, thereby vesting title, but also title vesting in defendants from the City of McAlester, under said act of congress.

The defendants in the instant case hold title in two ways direct from the railroad company and the municipality. For the grant to the railroad company was for a consideration under the provisions of the treaty under which the railroad company constructed the line of railway through the Indian Territory, the grant having been made and accepted and acted upon in the construction of the railway line, depots, etc., under the Act of July 25,-1866, and under the grant the fee passed to the railway company, without any provision for right of reversion, and with full power to convey, the grant by the railway company to these defendants vested (1) its title in the defendants and in addition (2) full title was vested in them through the municipality under the Act of April 26, 1906.

The railway company owned its right-of-way lands and depot and station grounds in fee. In the construction of land grants in aid of a railroad such granted lands are those falling within the limits specially designated, and the title to which attaches when the lands are located by and approval of an accepted survey of the line of the road filed in the Land Department.

In Missouri, K. & T. Ry. v. Oklahoma, 271 U.S. 303, 46 S.Ct. 517, 519, 70 L.Ed. 957, in an opinion by the Supreme Court of the United States, all the judges participating and concurring / except Mr. Justice Brandéis (not participating), the other Justices being Taft, Chief Justice, Holmes, Stone, Sanford, McReynolds, Butler, Van Devanter and Sutherland, Associate Justice, it is said: “The company (Missouri, Kansas & Texas Railway Company) owned its right of way land and station grounds in fee. Missouri, Kansas & Texas R. Co. v. Roberts, 152 U.S. 114, 14 S.Ct. 496, 38 L.Ed. 377.”

This referred to the station and depot grounds and right-of-way which were within the boundaries of the City of McAlester. The grant of the right-of-way and station or depot grounds to said railroad by the United States Government was with the consent and approval of the Choctaw and Chickasaw Nations, the sole consideration therefor being the construction of said railroad, and it is there held that the fee thereto of the station and depot grounds and right-of-way vested in the railway company, without any provision for a reversionary right. It may be urged as a matter of good faith that the railway company should have retained all of said grant and operated same. This grant by quitclaim to these defendants did not occasion the diminishing of the railway right-of-way or station grounds. The grant on the part of the defendants and citizens of the additional ground immediately on the west side for yarding, etc., made the right-of-way and station grounds more adequate and at least as valuable and as desirable and as useful for the uses and purposes of the railway company as theretofore.

I had occasion to personally inspect and observe these switch yards and this additional ground on the west side when I was hearing this case and it made the site and yards more useful and as adequate and more valuable for railroad purposes at least as theretofore. Form for judgment will.be prepared by attorney and submitted to the court for entry in accordance with these findings and conclusions. (Statement by trial judge).

The complainant did not immediately refuse to accept the tenders made in open court, and the court delayed in finally passing on the case until May 23rd, for complainants’ statement, and complainants not having advised the court as to the proffered tenders, though request had been made, and then I specially notified the attorneys for complainants that I would await answer as to accepting or declining the tenders and if they didn't accept same within the 30 days therefrom, to-wit, by June 23, 1944, he would treat such delay and failure to act as a refusal. This was done in order that this case might be expeditiously disposed of and not unreasonably delayed. ana

That said 30 days have expired and complainant has ignored same and the court finds that the tenders have been refused,

Further, this action is barred by the Statute of Limitation not having been instituted within the required time under Act passed by Congress on March 3, 1891, as amended on March 2, 1896.

       Art. 2, Treaty of October 18, 1820, proclaimed January 8, 1821, 7 Stat. 210, 211.

       Art. 1, Treaty of January 17, 1837, proclaimed March 24, 1837, 11 Stat. 573.

       34 Stat. 91, c. 1351; 34 Stat. 137, § 14, e. 1876.

       Art. 2, Treaty of October 18, 1820, proclaimed January 8, 1821, 7 Stat. 210, 211.

       Art. 1. Treaty of January 17, 1837, proclaimed March 24, 1837, 11 Stat. 573.

       “Durant, Oklahoma,
      “May 23, 1944.
      “United States Attorney
      “Federal Building
      “Muskogee, Oklahoma.
      “Dear Sir:
      “I herewith beg to hand you copy of letter received from your office on February 22, 1044 and since that time I haven’t heard from you.
      “I herewith beg to hand you copy of letter I wrote to the Clerk on March 6th and also copy of letter I wrote your office on March 28th, all in re: United States of America vs. State Bank of Winfield, Kansas, Civil No. 509.”
      “You will note on March 28th that I stated that I would be very glad to have a report as to whether the tenders made in open court would be accepted. I found from the evidence that the quitclaim deeds made by the several parties to the Choctaw and Chickasaw Nation were occasioned by the communication from Commissioner Burke written on January 11, 1927, in which he states:
      “ ‘The record shows that two tracts of land involved 1730 ft. long and 130 ft. wide. The land was formerly a part of the right-of-way and station ground of the Missouri, Kansas & Texas Railway, a Kansas Corporation, which corporation about October 25, 1904 attempted by quit-claim deeds to convey the land to a number of individuals who had created improvements thereon. Subsequent to this alleged sale the properties of the Kansas Corporation under receivership proceedings were acquired by the Missouri, Kansas & Texas Railway, a Missouri Corporation. In 1907 the City of McAlester, Oklahoma divided the land in question into lots and Mocks, numbered the blocks 85A and 118A and the lots 1 to 25 inclusive. The improvements upon the land are valued at approximately 875,000.00. * * * The quit-claim deeds given then by the Kansas Corporation indicated above it will be noticed were executed about 18 months prior to ihe Act of April 26, 1906 (34 Stat.L. 137) becoming a law. In connection herewith attention is invited to Sec. 14 of this Act. The views as set out in the report upon the matter from our office at Muskogee transmitted herewith are concurred in. It is recommended that authority be granted to cause a survey to be made of Blocks 85A and 118A indicated above and that the several lots shown by survey be appraised according to a valuation that would have been placed thereon in 1904 and when such survey and appraisement have been completed that such person or persons claiming title to any lot or lots be notified and given a preferential right to purchase the same at the appraised value thereof. If such preferential right be not exercised within 60 days from the date of notice that all lots not paid for shall be offered at public auction to the highest and best bidder therefor.’
      “These lots were appraised and these «quitclaims from these several parties to the Choctaw and Chickasaw Nations were taken under the representation that patents would be duly issued to said parties as same were issued to townsite administration by the payment of 50% of the appraised value for one class of the lots and 62%% of the appraised value of the other class of lots and I find it was under this condition and under this representation that these deeds were executed.
      “These parties made these tenders in court in accordance with that. I want to give the United States Attorney’s Office an opportunity to advise this court whether these tenders are to be accepted and I am giving you 30 days in which to so advise the court and if I am not advised within that time I will treat the tenders as having been refused on the part of the plaintiff in this action and proceed to hold that these deeds were void and of no force and effect on account of the conditions not being complied with and then endeavor to decide the case on the other issues presented.
      “I am sending a copy of this letter to attorneys for the other parties. I am rushing this letter to the United States Attorney’s Office because I see that assistant Landram is to go to the Navy and he appeared in these eases on the part of the Government and he dictated most of the correspondence I have had with your office. I would have had this case decided by the middle of April if it hadn’t been for holding it up for this information.
      “Yours very truly,
      “Robert L. Williams.
      “P-
      “cc: Hulsey & Hulsey,
      “H. I. Aston,
      “W. G. Stagier."

       “Department of Justice
      “United States Attorney
      “Eastern District of Oklahoma
      “Muskogee, Oklahoma
      “May 27, 1944
      “Hon. Robert L. Williams,
      “U. S. Circuit Court Judge
      “Durant, Oklahoma
      “Dear Judge Williams:
      “Re: U. S. vs. State Bank of Winfield, Kansas, No. 509 Civil.
      “Your letter reached this office just after Mr. Landram had left for the United States Navy where he has been commissioned a Lieutenant (j. g.). I find from the file that he some time ago submitted this matter to the Attorney General for advise, which has not yet been received. I am again calling the attention of the Attorney General to this matter and particularly to the time limit fixed in the letter from you of May 23, 1944.
      “We appreciate your advise to us and your attempt to advise this office before Mr. Landram left.
      “Very truly yours,
      “Francis Stewart
      “FS:fh Assistant United States
      Attorney.”


source: Caselaw Access Project

author: MADDEN, Judge. WHITAKER, Judge

license: Public Domain

text:
    CALIFORNIA ELECTRIC POWER CO. v. UNITED STATES.
    Nos. 45688, 45916.
    Court of Claims.
    May 7, 1945.

      Henry W. Coil, of Riverside, Cal. (Douglas L.' King, of Riverside, Cal., on the brief), for plaintiff.
    William A. Stern, II, of Washington, D. C., and Francis M. Shea, Asst. Atty. Gen., for defendant.
    Before WHALEY, Chief Justice, and LITTLETON, WHITAKER, JONES, and MADDEN, Judges.
   MADDEN, Judge.

In these two cases we have written one set of findings of fact and one opinion. In case No. 45688 the plaintiff sues for $82,172.54, claiming that it was overcharged this amount by the Government for electric power taken by the plaintiff from a generating plant at Boulder Dam, in that it was denied a “load-building” or “load-absorption” period which, if granted, would have reduced its charges by the amount stated. In case No. 45916 the plaintiff sues for $184,081.31 which, it claims, it was overcharged for Boulder Dam electric power under an “interim” contract with the Government, in that it was required to pay 1.63 mills per kilowatt-hour for secondary power when the lawful price for such power was only .5 mill. References to the plaintiff apply, depending on the time of the action referred to, to the plaintiff’s former wholly owned subsidiary, the Southern Sierras Power Company, or to the plaintiff itself, either under its former name, the Nevada California Electric Corporation, or under its present name.

The Boulder Canyon Project Act of December 21, 1928, 45 Stat. 1057, 43 U.S. C.A. § 617 et seq., required the Secretary of the Interior to obtain contracts, from future purchasers of power to be generated at the dam, adequate in his judgment to insure the payment of all costs of operation and maintenance and the repayment within 50 years from the date of completion of the project of the cost of building it, with interest. Unless and until such contracts were obtained, no money was to be spent in constructing the dam. The Secretary, on April 26, 1930, made a contract for the lease of the power privileges at the dam to the City of Los Angeles and the Southern California Edison Company. The City agreed to operate a part of the power plant machinery of the dam and to generate electricity at cost for itself, the Metropolitan Water District, the States of Nevada and Arizona if and when they should elect to take power, and certain other municipal corporations which were, by contracts to be made, to receive allotments of power. Edison similarly agreed to operate the rest of the generating equipment to supply power to itself and to the plaintiff and the Los Angeles Gas and Electric Corporation. The lease contract provided that the City and the other municipalities should be entitled and obligated to take power when the Secretary should announce that 1,250,000,000 kilowatt-hours per year of energy were ready for delivery; that the Metropolitan Water District, with which the Secretary on the same day made a contract for a large allotment of power, was to become entitled and obligated to take power when the Secretary should announce that 2,000,000,000 k. w. h. were available, but not sooner than 1 year after the commencement of delivery to the city; and that Edison and the other private allot-tees were to become entitled and obligated to take power when water capable of generating 4,240,000,000 k. w. h. was available, but not sooner than 3 years after commencement of delivery to the City. The lease was to run for 50 years from the date when delivery of power to the City should begin.

In the autumn of 1931, the Secretary made separate contracts with the cities of Pasadena, Glendale, and Burbank, California, the Los Angeles Gas and Electric Corporation and the plaintiff. The plaintiff’s contract was dated November 5, 1931. In each of these contracts the allottee agreed to take and/or pay for the percentage named in the contract of the whole amount of firm energy to be generated at the dam, at the price of 1.63 mills per k. w. h.

The lease and the several contracts allotted, by percentages, the entire 4,240,000,000 k. w. h. per year among the several allot-tees as firm power, i. e., as power which the Government bound itself to deliver and the allottees bound themselves to pay for. The rate to each allottee for firm power was 1.63 mills per k. w. h., ekcept as that rate was affected by the load-building or absorption period discussed hereinafter. It was contemplated that there would actually be more than 4,240,000,000 k. w. h. of power available, and the possible excess was secondary power. Rights in secondary power were specified in the lease and the contracts, and the rate for it was set at .5 mill per k. w. h. The table in finding 8 shows the rights of the parties to firm and secondary power.

In the lease a concession was made to the City of Los Angeles and to Edison, that they would not, for the first three years that each was bound to pay for power, be obliged to take or pay for their full ultimate allotments at the firm power rate. It was provided that, for the first, second, and third years only 55, 70, and 85 percent, respectively, need be taken, and that if more than those percentages were in fact taken, the excess would be charged for only at the .5 mill secondary power rate. This was the “load-building period” privilege, which, as we shall see, the plaintiff claims it did not get, which claim is the basis for the suit in case No. 45688. This privilege was given to the Metropolitan Water District in its contract of April 26, 1930, which was also the date of the lease. It was not given to the 3 smaller cities, nor to the Gas Company, nor to the plaintiff, in their contracts made in the autumn of 1931. As we shall see, it was later given to all of the municipalities, and to the city of Los Angeles, as the successor to the Gas Company, but not, at least in the same form, to the plaintiff, though the Government urges that it was given to the plaintiff in substance.

Contracts adequate to reimburse the Government having been made, the Government proceeded with the bfiilding of the dam. As building progressed, the prospect was that the Secretary would announce the availability of 1,250,000,000 k. w. h. per year of power, which announcement would put into effect the obligation of the City of Los Angeles to begin to pay for its percentage of power, about June 1, 1937. The dam was expected to be completed in 1936. But all the water in the river could not be impounded while the depth necessary to generate 1,250,000,000 k. w. h. was built up, since persons downstream had the right to a flow of some of the water for irrigation and other uses. Hence, some water would have to be released, and if it was put through the generating equipment, power not contracted for would be available. It was also expected that in the interval between each announcement and the succeeding one, water would be available to generate more power than the amount covered by the original contracts. As early as 1934 the City of Los Angeles, Edison, and the plaintiff applied to the Secretary for “interim” contracts to buy this power, when it should become available, at the .5 mill secondary power rate. The City objected to the plaintiff’s getting any of it at that rate, because the plaintiff’s “interim” would continue for some three years after the City began to pay the firm power rate of 1.63, and, the City claimed, the plaintiff was in competition with it at various points. A conference was held in Washington at which representatives of the City, the plaintiff, the United States Bureau of Reclamation and the Department of the Interior prepared and signed, on October 3, 1934, a “Memorandum of Understanding.” See finding 10. This memorandum provided that the City should have an interim contract at the secondary rate until it became bound, under the lease, to take power at the firm rate; that the plaintiff should have a similar interim contract until it, in its turn, became so bound; and that the cities of Pasadena, Glendale, and Burbank should have load-building privileges. In the memorandum the City withdrew its obj ection to the plaintiff’s receiving an interim contract. The Secretary never approved the agreement embodied in the memorandum, however, añd the plaintiff never received an interim contract on the terms provided in the memorandum. On October 22, 1934, the City was given an interim contract to take power at the .5 mill rate from the time sufficient water became available until the time when it became bound to pay the firm power rate under the 1930 lease. On October 30, 1934, Pasadena and Burbank, and on November 1, Glendale, were given supplemental contracts giving them 3 year load-building periods similar to those given in 1930 to the City, Edison, and Metropolitan. These municipalities were, as we have seen, to begin to take firm power at the same time as the City, so their load-building periods were to be concurrent with that of the City. The Secretary in 1934, 1935, and 1936, refused, though requested, to give the plaintiff either a load-building period, or an interim contract at the .5 mill rate.

In May 1937 the Secretary announced that 1,250,000,000 k. w. h. per year would be available June 1, 1937, thereby obligating the City of Los Angeles and the three smaller cities to begin to take power at the firm rate, as modified by the load-building privilege, from the latter date. The City’s interim contract thus came to an end on May 31, 1937. On July 22, 1937, the plaintiff was given a supplemental or interim contract to be operative for the period of approximately 3 years which would elapse before the availability of the full 4,240,000,000 k. w. h. would be announced and the plaintiff’s permanent contract would go into effect. This interim contract provided that the plaintiff should receive 114,280,000 k. w. h. the first year, and specified amounts slightly less than that for the second and third years, of “firm” energy at the 1.63 mills rate, and additional energy at the .5 mill rate. The contract designated the named amounts of energy as “firm” energy, but the energy was not “firm” within the meaning of that term as used in the lease, the other contracts and the regulations. It was completely subordinate to the rights of the City, though the prospect was that it would in fact be available and it turned out to be available for the three-year period. It was also subject in various ways to the will of the Secretary. This interim contract gave the plaintiff, for the interim period, the load-building concession which meant that only 55, 70, and 85 percent of the specified amounts of “firm” energy had to be taken and paid for at the 1.63 mills rate during the first, second, and third years, respectively, of the interim contract, amounts taken in excess of those percentages carrying only the .5 mill rate. The refusal to give the plaintiff a .5 mill rate for all power taken under its interim contract is, as we have said, the basis for its suit in No. 45916.

In No. 45688 the plaintiff’s claim is based on the fact that it was not given a load-building period which would have reduced the price of its power from 1.63 mills to .5 mill per k. w. h. for 45, 30, and 15 percent of the firm power which it took during the first, second, and third years of the period of its permanent contract, i. e., from June 1, 1940 to May 31, 1943. As appears above, all other parties to the lease and the contracts made in 1931 were given such a period. In support of its claim for equal treatment in this regard, the plaintiff cites the Boulder Canyon Act, 45 Stat. 1057, 43 U.S.C.A. § 617, the Regulations issued by the Secretary of the Interior, the basic lease to the City and Edison, and the contracts with the plaintiff and others. Section 5 of the Act provided, in part:

“That the Secretary of the Interior is hereby authorized, under such general regulations as he may prescribe, to contract for the * * * generation of electrical energy and delivery at the switchboard to States, municipal corporations, political subdivisions, and private corporations of electrical energy generated at said dam, upon charges that will provide revenue which, in addition to other revenue accruing under the reclamation law and under this act, will in his judgment cover all expenses of operation and maintenance incurred by the United States on account of works constructed under this act and the payment to the United States under subdivision (b) of Section 4. * * *

“General and Uniform regulations shall be prescribed by the said Secretary for the awarding of contracts for the sale and delivery of electrical energy. * * * ”

The Secretary’s General Regulations, promulgated ojl April 25, 1930, after conferences with the municipalities and companies which were to take the power, provided for the making of the lease to the City and Edison; defined firm and secondary energy; fixed the rate per k. w. h. for each class of energy; allocated the energy among the lessees and allottees, and fixed the minimum annual obligations of each lessee and allottee. The lease, as we have seen, was dated April 26, 1930, and leased the generating machinery at the dam, some to the City of Los Angeles and some to Edison. It also, by its terms, made allotment contracts with the City and Edison, which incorporated the terms set out in the regulations. It provided in Article 14 (D) for the allocation of 6% .of the power to a list of municipalities, including Burbank, Glendale, and Pasadena, and in Article 14 (F) (ii) it required the City of Los Angeles to take and pay for so much of the energy allocated to the municipalities as they did not take and pay for. It provided in Article 14 (F) for the allocation of power to the plaintiff. The other contracts, including the one made with the plaintiff, also covered the subjects of allotments and rates, and a copy of the lease was attached to and made a part of each contract. Arti- ■ cle 37 of the lease said :

“Any modification, extension, or waiver by the Secretary of any of the terms, provisions, or requirements of this contract for the benefit of any one or more of the allottees (including the lessees) shall not be denied to any other.”

As we have seen, the lease granted the load-building period to the City and Edison, whereby each was, for the first, second, and third years of its contract excused from taking more than 55, 70, and 85 per cent of the agreed amount of firm energy at the 1.63 mill rate, and, if it took more than those percentages, got the excess at the .5 mill rate. The municipalities of Burbank, Glendale, and Pasadena, as well as the plaintiff and the Gas Company, were not given this concession in their original contracts made in the autumn of 1931. But, as we have seen, in the autumn of 1934, following the signing of the “Memorandum of Understanding,” the Secretary made supplemental contracts with the three municipalities in which it granted load-building periods to them on the basis of the same percentages as those granted to the City and Edison. On October 22, 1934, as shown in finding 11, the Secretary made a contract with the City, excusing the City from its guaranty that the*municipalities would pay for their allotments of power, to the extent that their allotments were to be reduced by the load-building period which they were to be given.

The plaintiff claims that it was entitled to a load-building period because that concession was made to the municipalities. It points to Article 37 of the lease, quoted above. It says that the supplemental contracts with the municipalities were modifications of the lease (1) because the lease was incorporated in and made a part of each of the original contracts which'were later modified, and (2) because the term of the lease itself, by which the City guaranteed to pay for the allotments of the municipalities at firm energy rates, if the municipalities did not pay, was modified by the contract of October 22, 1934, with the City. It also points to the fact that when, in 1938, the City became the assignee of the property and rights of the Gas Company, it on July 6, 1938, obtained a contract with the Secretary whereby, as such assignee of the Gas Company’s contract with the Secretary, it was given a load-building period. The contract of July 6, 1938, which is quoted in finding 19, said that it was made to give the City, as assignee of the Gas Company, the same privileges given to other allottees on October 30, 1934, evidently referring to the supplemental contracts with the municipalities.

We think the plaintiff became entitled to a load-building period, when that concession was made, to the municipalities and to the City as guarantor, and as assignee of the Gas Company. We think the lease and the contracts made with the allottees other than the lessees were intended to provide for equal treatment of the allottees, including the lessees, except as the lease and the original contracts which were contemplated by the lease, and into which the lease was incorporated, provided. The lease was modified when the requirement of its Article 14 (D) that the municipalities take 6% of firm power was reduced by the percentages of the load-building period, and when the requirement of its Article 14 (F) relating to the Gas Company was similarly reduced, for the benefit of the City as assignee. Its Article 14 (F) (ii) was modified when the City’s guaranty to take or pay for the municipalities’ allotment if they did not do so was reduced by the same percentages.

The government argues that the lease was not modified by these concessions to other allottees, but, as we have indicated, we do not agree. The Government also urges that, whether or not the plaintiff became entitled to a load-building period, it received that concession, in its interim contract given it by the supplemental lease of July 22, 1937, shown in finding 17. By this lease it agreed to take specified quantities of power, during the interval of about two years and ten months before the time when its original contract of 1931 would have required it to take power, and to pay the firm power rate of 1.63 mills for this interim power, except that any power taken by it in excess of 55, 70, and 85 per cent of the specified quantities, during the first, second, and third years, respectively, of the interim contract, would carry only the .5 mill rate. We think that the acceptance of this interim contract by the plaintiff did not destroy its right, under the lease and its original contract, to have a load-building period of three years from June 1, 1940, the date when it became obligated under its original contract to begin to take and pay for power. The contracts of the municipalities, and of the City as assignee of the Gas Company, were modified so as to give them load-building periods from the corresponding times in their contracts. We think that the Government has no right to set up, as to the plaintiff, something which, it claims, is the equivalent of, or practically as good as, the thing which it had expressly agreed that the plaintiff should have. The load-building period given to the plaintiff in its interim contract was not, we think, intended to be given as a substitute for one to which the plaintiff was entitled under Article 37 of the lease. As will appear from the discussion of No. 45916, a complicated set of circumstances led to the making of the interim contract. The right, which the plaintiff claims, accrued to it as a result of a statute, regulations of general effect, and contracts made by an authorized public officer. The effect of these acts and contracts was to fix schedules of rates and terms on which those entitled to power from the dam would get it. The Government, as the vendor of power, should not be permitted to change those schedules to the prejudice of the purchaser. We conclude, therefore, that in No. 45688 the plaintiff’s claim to the benefits of a load-building period for the three years beginning June 1, 1940, is well founded.

No. 45916 is, as we have said, based upon the claim that all of the power which the plaintiff took under its interim contract of July 22, 1937, and for which it paid 1.63 mills, except for the percentages covered by the load-building period, for which percentages it paid .5 mill, should have carried the .5 mill rate because it was secondary power. The plaintiff relies upon the Boulder Canyon Act, which, it contends, required that the power be disposed of under uniform regulations; the Regulations of the Secretary of the Interior, which set the rate of .5 mill for secondary power; the “Memorandum of Understanding” with the plaintiff and others, of October 3, 1934; the interim contract with the City of Los Angeles, of October 22, 1934, selling to it power which had express priority over the plaintiff’s interim power, at the .5 mill rate; the “third circuit” contract with the City, of July 6, 1938, whereby the City was assured a specified amount of power, in addition to the firm power agreed to in its original lease, at the .5 mill rate; and the contract of October 14, 1938 with Edison whereby, without notice to the plaintiff, Edison was given a contract for unused firm power of the Metropolitan Water District at the .5 mill rate.

The Government’s defense to this claim is, in substance, that the power available before the date of the first announcement which put the City’s permanent contract into effect, and after each announcement but before the succeeding one, until the ultimate announcement of 4,240,000,000 k. w. h. of available power was made, putting the last of the contracts into effect, was power not covered by the Regulations or contracts, which the Secretary could refuse to sell at all, or sell on any terms he saw fit, and that the plaintiff is therefore bound by its contract to pay the agreed rates. As we have shown, the City and the plaintiff each applied for interim power. The conference of the interested parties with the agents of the Government produced the Memorandum of Understanding of October 3, 1934. That memorandum was intended as an agreement that various formal contracts would be made. All the contemplated contracts were made, except the one giving the plaintiff an interim contract, at the .5 mill rate. The City was given such a contract, and began to take power under it in October 1936, and ceased doing so on June 1, 1937, when its permanent contract began to operate.

The Secretary refused to approve an interim contract with the plaintiff on the terms provided in the Memorandum of Understanding. Further negotiations occurred in the succeeding years, and on July 22, 1937, an interim contract was made with the plaintiff. It leased to the plaintiff the generator which had been ordered by the Government i.n 1934, pursuant to the Memorandum of Understanding, and installed at a cost of $1,000,000, and required the plaintiff to pay its amortization and operating charges. It bound the plaintiff to take some 114,000,000 k. w. h. of power per year, designated the power to be taken as “firm” power, and fixed the firm power rate of 1.63 mills as the applicable rate. It granted the plaintiff a load-building period, for the interim, which meant that for power taken in excess of 55, 70, and 85 percent of the agreed amounts for the three successive years, the .5 mill rate would apply. The contract made the plaintiff’s right to the release of any water for generating power subject to the conclusive determination of the Secretary that there was water available above what was needed for the fullest operation of equipment already or subsequently installed to serve the City of Los Angeles, or others having contracts for power. It provided that interim contracts might be made with others having contracts which did not yet entitle them to take power. Article 33 of the contract, quoted in finding 17, provided that if more favorable rates should be granted to any allottee or contractor, then the plaintiff should not thereafter be required to pay more than those rates. Article 33 was not, however, to apply to rates for the temporary resale of power allotted to the Metropolitan Water District.

The interim power which the plaintiff was entitled to under its contract was not “firm” power, as that term was used in the Regulations, lease, and-contracts other than the interim contract. Firm power as defined was power which the Government agreed to deliver and the taker had the right to demand. The amount of firm power to be ultimately available had been conservatively estimated, so that the financing of the project would be sound, and it was always anticipated that there would be, in fact, a good deal more power than that which had been contracted for as “firm.” The mere prospect or likelihood that power would be available was not, therefore, the basis of distinction between firm and secondary power. Yet the interim contract attached the label “firm” to the plaintiff’s power, in contradiction of the use of the term in all other connections. The obvious purpose of the label was to justify the rate. The reason for the imposition of the rate was that the Secretary thought it would be unfair for the plaintiff to have the .5 mill rate for the three years before its permanent contract went into effect, while the City would be paying the full rate for a considerable percentage of its power.

The regulations, the lease, and the original contracts fixed the rates for firm and secondary power. We think they bound the Secretary, if he desired to market the power here in question, to charge the price for it which was applicable to its true nature. It was secondary power, because it was not agreed to be delivered, and was expressly made subject to the priorities of the City, and to being shared, if necessary, with others. The rate, set by public regulation and by agreement, applicable to secondary power, should have been applied to it.

The plaintiff asserts that, by Article V of the Regulations, Article (14) of the lease, and Article (7) of the plaintiff’s original contract, which provided for the allotment of energy, it was entitled to a portion of the secondary energy at any time that such energy was available and was not taken by Metropolitan. If so, it was entitled to get it at the .5 mill rate set in the Regulations, lease, and contract for secondary energy. We think it was so entitled. A practical impediment to its getting it was, originally, that it would have no facilities for generating it until Edison took possession under its lease after 4,240,-000,000 k. w. h. of energy were available. In fact the Secretary, by the plaintiff’s interim contract of July 22, 1937, leased generating equipment to the plaintiff, thus making secondary energy available to it. But in the same contract, he labeled the secondary energy as “firm” and charged 1.63 mills for most of it. We think that, having made it available, he could not depart from the rate set in the Regulations, lease, and contract.

The so-called “third circuit” contract made by the Government with the City on July 6, 1938 is relied on by the plaintiff as bringing into play from that date the provision of Article 33 of the plaintiff’s- interim contract promising to it the benefit of any more favorable contract made thereafter. The City was proposing to build an additional transmission line, and desired to obtain additional power. By this contract the Government agreed to supply 3,000,000,000 k. w. h. of additional power at the .5 mill rate during the period ending May 31, 1945. It also agreed to a formula for adjusting future rates for secondary power, the regulations, lease, and original contracts not having contained any provision for those rates.

We think that the third circuit contract, which gave the City a .5 mill rate for power, including interim power, which power, if secondary, yet had priority of right over the plaintiff’s interim power, entitled the plaintiff under Article 33 to the .5 mill rate from July 6, 1938.

Edison’s contract for firm power did not go into effect until June 1, 1940. The Metropolitan Water District had, in the original contracts, obligated itself to pay for 36% of the firm power generated at the dam. Its obligation was to begin when the Secretary announced the availability of 2,000,000,000 k. w. h., one year after the City’s obligation became effective. In 1937 it was apparent that the 2,000,000,000 k. w. h. announcement would be made June 1, 1938. It had been expected from the beginning that Metropolitan would not, in fact, have use at least in the early years for its 36% of firm power, and the lease and contracts had provided that the Secretary might resell, for Metropolitan’s account, what it did not use; that the City and Edison should each have an option to buy one-half of such power; that the plaintiff should have an option to buy 10% of Edison’s one-half, and that if the Secretary proposed to sell such power he would notify the several parties having options. In 1937 the Secretary notified the parties, including the plaintiff, that he proposed to sell Metropolitan unused power, to begin June 30, 1938, at the 1.63 mills firm power rate. None of the parties exercised their options. On October 14, 1938, after the plaintiff had made its interim contract on July 22, 1937, the Secretary, without notice to the plaintiff, made a contract to sell Edison Metropolitan unused firm power at .5 mill. Failure to notify the plaintiff was a breach of the Government’s contract giving the plaintiff an option to buy such power, and a right to notice when it was for sale. The Government urges that the plaintiff was not hurt by this alleged breach, since it had, by its interim contract, obligated itself to pay 1.63 mills for a specified amount of power, subject to the load-building concession of a rate of .5 mill for all above 55, 70, and 85% of the specified amount in the first, second, and third years, hence would be getting at .5 mill all the power it was free to buy at a rate other than 1.63 mills. The plaintiff replies that what it was getting under its interim contract at .5 mill was secondary power, subject to the priority of the City and the will of the Secretary, while what it was entitled to buy of the unused Metropolitan power was firm power, subject to no prior right in anyone. The plaintiff suggests that the reason it was not notified of the proposed sale of unused Metropolitan power was that if it had entered into the negotiations to buy firm power at .5 mill the absurdity of its having been charged 1.63 mills, in its interim contract, for secondary power, would have been so apparent as to demand a revision of that contract. We think there is probable merit in the suggestion. The provision of Article 33 of the plaintiff’s interim contract would certainly have been called into play by the sale to Edison, except that Article 33 expressly provided that it should “not be construed to apply to rates and charges fixed in contracts covering the temporary resale of electrical energy allotted to” Metropolitan. The plaintiff claims that because of the Government’s breach of its contract to notify it of the sale of Metropolitan unused power, the Government lost its right to insist upon the proviso in Article 33. We do not see the force of this argument, and, since we have concluded above that the plaintiff was entitled to the .5 mill rate, it is not necessary to determine what effect, if any, the Edison transaction may have had upon the plaintiff’s rights.

The Government urges, with regard to both suits, that whatever rights the plaintiff may have had to a load-building privilege or to a .5 mill rate for its secondary power, it lost those rights by voluntarily entering into its interim agreement. The plaintiff says that it did not make the agreement voluntarily, but made it as a result of economic duress. We agree with the plaintiff. We have found that it did all that it could to obtain an interim contract along the lines of the 1934 Memorandum of Understanding. It was apparent in 1937 that this could not be accomplished. It would not have been prudent, even if it had been possible, for it in 1937 to have obtained other sources of needed power, since it was to become bound in 1940 to take power under its contract, hence other arrangements would have had to be temporary. The 1.63 mills rate of its interim contract was probably less than it would have had to pay elsewhere. The fact that the Gas Company, with which it had had exchange arrangements, was being taken over by the City, which was not friendly and was questioning the validity of the exchange arrangements, made it imprudent for it to depend greatly on that source of power. One who has a right to obtain a service from a public utility, for which service there is a charge fixed by law, cannot estop himself from challenging a higher charge by an agreement to pay it. To a degree, the extent of which it is not necessary to determine, the same doctrine is, we think, operative in this case, and coupled with the economic duress to which the plaintiff was subject, it is sufficient to relieve the plaintiff of any waiver which might otherwise have resulted from its making of its interim contract. The Regulations, lease, and contracts made by the Secretary created a situation which contemplated and called for treatment of all parties on the basis of uniform definitions and rules. For him to change the defined meaning of terms, and make special applications of the rules to particular situations because he thought they called for special treatment, was, we think, a denial to the plaintiff of its rights under the Regulations and the contracts.

The plaintiff is entitled to recover in both cases. Judgment will therefore be entered for plaintiff in case No. 45688 in the sum of $82,172.54, and in case No. 45916 in the sum of $184,081.31. It is so ordered.

WHALEY, Chief Justice, and LITTLE-TON, Judge, concur.

WHITAKER, Judge

(dissenting).

I do not think plaintiff is entitled to recover in either case. Under the original leases and contracts the plaintiff was not entitled to any power until 1940, when it was to take a part of that to be generated by the Edison Company beginning in that year. It wanted it earlier and induced the defendant to lease to it generating equipment so it could generate its own current and so get it earlier than it could under its arrangement with the Edison Company. Defendant was under no obligation to do this; nor was plaintiff under any compulsion to take the power. The parties were free contracting agents.

They entered into a contract for power on precisely the same terms as the city’s contract. The only difference was the city was entitled to get its power first; but this was immaterial because there was plenty for both parties.

No more has been charged plaintiff than it agreed to pay. There has been no discrimination, and, so, I do not think plaintiff is entitled to recover.

JONES, Judge, took no part in the decision of this case.

       To be contracted for as needed.


author: SYMES, District Judge.

text:
    BOWLES, Adm’r of Office of Price Administration, v. AMATO et al.
    Civil Action No. 808.
    District Court, D. Colorado.
    May 7, 1945.
    Max D. Melville, Regional Litigation Atty., French L. Taylor, District Enforcement Atty., and I. R. Schwartz, Associate Enforcement Atty., all of Denver, Colo., for plaintiff.
    Harold Taft King, of Denver, Colo., for defendants.
   SYMES, District Judge.

MEMORANDUM ON MOTION TO SUPPRESS EVIDENCE

This is an action by the Administrator of the Office of Price Administration to recover treble damages under § 205(e) of the Emergency Price Control Act of 1942, as amended, 50 U.S.C.A.Appendix § 925(e), for alleged overcharges of $831.36 on sales of bananas by defendants Amato between February 1st and October 24, 1944. The action is based on evidence secured by the Administrator from the defendants under subpoena duces tecum dated August 2nd and November 9, 1944, after the defendants had refused to voluntarily turn over such records, claiming privilege and immunity against self-incriminations. This evidence related to the purchase and sale invoices of the defendants.

The matter is before the court on defendants’ motion to suppress the evidence thus obtained by the Administrator, on the ground that the plaintiff has violated § 202 (g) of the Emergency Price Control Act of 1942, as amended, and the compulsory testimony act of February 11, 1893, U.S.Code, 1934 Ed., Tit. 49, § 46, 49 U.S.C.A. § 46, which is a part of the Emergency Price Control Act.

The issue is narrowed by defendants’ admission that by virtue of subsection 202 (b) of the Emergency Price Control Act and the regulations issued by the Administrator thereunder, Congress gave the OPA the right to seize under subpoenas duces tecum the records of the defendants, but they maintain that § 202(g) of the Emergency Price Control Act protects them against the use of evidence so obtained. Furthermore, the Government concedes the defendants’ motion would be good if the defendants were required to testify viva voce as to the evidence involved, or if the records seized under the subpoena had been private papers, and it was sought to bring a penal suit on information thus obtained. It is conceded that defendants made their timely claim of immunity under the act, and the question is, is the immunity from criminal or penal liability granted by the act as to non-privileged records? The compulsory testimony provision reads in part:

“But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before said commission, or in obedience to its subpoena, or the subpoena of either of them, or in any such case or proceeding.” 49 U.S.C.A. § 46.

The Government’s contention is that this immunity provision has no application tO' the production of records, which as here are required by law to be kept for use of the Administrator in the enforcement of the act, or for the benefit of the public. Such records, it says, are not and cannot be privileged under the Fifth Amendment of the Constitution. The defendants cite Boyd v. United States, 116 U.S. 616, at page 633, 6 S.Ct. 524, at page 534, 29 L.Ed. 746, where the Court says:

“And we have been unable to perceive that the seizure of a man’s private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself. We think it is within the clear intent and meaning of those terms.”

In United States v. White, 322 U.S. 694, at page 698, 64 S.Ct. 1248, at page 1251, 88 L.Ed. 1542, the Court says:

“The constitutional privilege against self-incrimination is essentially a personal one, applying only to natural individuals.”

And at page 699 of 322 U.S., at page 1251 of 64 S.Ct., 88 L.Ed. 1542:

“Moreover, the papers and effects which the privilege protects must be the private property of the person claiming the privilege, or at least in his possession in a purely personal capacity.” Citing the Boyd case, supra. [Emphasis ours.]

It will be observed that these two cases— typical of many others — point out that the protection or immunity is given to the private papers of the individual. The question therefore arises whether papers and records kept pursuant to the Federal statute are private papers within the sense that term is used in the cases.

An interesting recent case is Rodgers v. United States, 6 Cir., 138 F.2d 992. That was an action by the United States against the defendant appellant to require him to file certain farm operator’s reports pursuant to the cotton marketing quota provisions of the Agricultural Adjustment Act of 1938, 7 U.S.C.A. § 1281 et seq., and recover an amount allegedly due for excess market quotas. The appellant, a producer of cotton, sought to reverse a judgment of the lower court requiring him to file certain farm operator’s reports pursuant to the ■cotton marketing quota and the regulations of the Secretary of Agriculture issued thereunder. The judgment awarded the United States a money judgment by reason of the cultivation and sale of cotton by the appellant in excess of quotas established under the Agricultural Adjustment Act.

Under the regulations the farmer was required to report on the forms promulgated by the Secretary of Agriculture the necessary data from which it could be determined the sanction imposed for marketing excess cotton quotas. Appellant contended that the sanctions provided under the Act are penalties and to require him to make reports from which the alleged penalties could be ascertained would compel him to be a witness against himself, contrary to the Fifth Amendment.

The court held, briefly, that since Congress may restrict the amount of cotton produced and marketed by farmers, it logically follows that it may require the farmer as a means of enforcing the valid law to keep records to show whether he has in fact complied with the Act and remained within the quota, and then states, 138 F.2d 995:

“The constitutional privilege against self-incrimination is not all-inclusive. There is excluded therefrom papers, records and reports required by law to be kept and made in order that suitable information may be obtained of transactions which are appropriate subjects of governmental regulations.”

The court further holds that the records and reports required by the statute in question are quasi public documents and not for the appellant’s private use. They are for the benefit of the public and open to inspection by such persons and officers as are authorized under the statute to inspect them. Citing Wilson v. United States, 221 U. S. 361, at page 382, 31 S.Ct. 538, 55 L.Ed. 771, Ann.Cas.1912D, 558.

The court further distinguishes the Boyd case, supra, on the ground that that case held the enforced production of the private books and papers of the owners of the goods sought to be forfeited was violative of the Fourth Amendment, pointing out that the Act there in question provided that the claimant could be required to produce in court his private books, invoices and papers, and that the rule of the Boyd case is carefully differentiated in the Wilson case from the rule applicable here, pointing out that to relieve those engaged in business subject to public regulation of the obligation to keep records and make reports, would extend to individuals an immunity not within the concept of the constitutional prohibition against self-incrimination.

Coming to our own Circuit Court of Appeals, Bowles v. Beatrice Creamery Co., 146 F.2d 774, at page 779, it is held that as a means of enforcing a valid law Congress may require the keeping of records reasonably necessary to that end, to show whether there has been a compliance with the law and, page 779:

“As a means of enforcing a valid law, Congress may require the keeping of records reasonably necessary to that end. To require the keeping of records showing whether there has been compliance with a valid law is an appropriate means to a legitimate end. Such records are quasi-public in character and as to them the privilege against self-incrimination under the Fifth Amendment does not apply.”

It therefore follows that as long as the evidence sought to be suppressed was such as was required to be kept by a valid law of Congress, or duly authorized regulations — which is not here questioned — the same are quasi-public records, and the evidence disclosed thereby cannot be suppressed as long as the defendants are not required to give evidence viva voce, or to produce their private papers.

See also Bowles v. Glick Bros. Lumber Co., 9 Cir., 146 F.2d 566, where it was held that an inspection of a wholesaler’s records by the price administration representatives, authorized by statute and regulation, did not violate defendant’s rights under the Fourth and Fifth Amendments.

The motion to dismiss and suppress the evidence is overruled.


author: DAVIES, District Judge.

text:
    RIDGEWAY et al. v. WARREN.
    Civil Action No. 28.
    District Court, M. D. Tennessee, Columbia Division.
    May 7, 1945.
    Noble L. Freeman, of Lawrenceburg, Tenn., for plaintiffs.
    John J. Hooker, of Nashville, Tenn., E. W. Eggleston, of Franklin, Tenn., and Foster F. Locke, of Lawrenceburg, Tenn., for defendant.
   DAVIES, District Judge.

The cause was submitted upon the pleadings, evidence, exhibits, and argument of counsel for plaintiffs and defendant, and, after due consideration thereof, the Court enters its findings of fact and conclusions of law, as follows:

Findings of Fact.

1. The defendant H. H. Warren is the owner and operator of a large farm comprising approximately fifteen hundred acres located near Appleton, in Lawrence County, Tennessee. In conjunction with his farming operations, he has operated a general retail country store, a cotton gin, and a sawmill. In October, 1938, he was engaged in clearing and putting into cultivation a considerable part of the land which he owned. On some portions of the land there was a good stand of timber, and defendant had the timber cut and manufactured into lumber at the small sawmill located on his property, which began fairly regular operations during the month of October, 1938, cutting about seven or eight thousand board feet of lumber a day.

2. Most of the plaintiffs in this cause began working 'for the defendant about the time these operations began, or shortly thereafter. They were all employed by defendant, and were paid by him at the rate of $1 per day either in cash or in merchandise from his general store. Some were employed in the capacity of cutting timber, others hauling logs, and others working at the mill and hauling lumber. The ordinary day’s work was ten hours. The defendant sold the lumber manufactured by him to various individuals and lumber dealers, and knew that the larger part of the lumber manufactured by him was intended for shipment or distribution in other states.

3. At the beginning of the timber cutting operations by the defendant, he did not purchase timber from other parties except possibly in one or two minor instances, one of which took place before the Fair Labor Standards Act became effective, but was engaged mainly in cutting and manufacturing into lumber the timber which he had been clearing from his own property so as to make the land available for agricultural purposes. It appears that defendant fattened and sold a large number of live stock every year and harvested approximately two thousand bales of cotton during the year 1941, so that he was extensively engaged in farming operations, and it is readily deductible from the evidence in this ■cause that during the first part of his timber operations, this activity was mainly incidental to his agricultural and farming operations so that the land cleared by the removal of the timber could be put to agricultural uses.

4. This situation existed until approximately the first of July, 1939, at which time the sawmill and timber operations changed its entire aspect. The defendant has a brother, Mason Warren, who appears to be a sort of ne’er-do-well, and for a number of years has been a responsibility of the defendant’s. Mason Warren had been away, from the village of Appleton, the home of defendant, for several years and returned there in 1937 and went to work for the defendant. After the defendant began his timber operations, he employed Mason to superintend the cutting of timber and the hauling of logs to the mill and paid him on the basis of a day laborer, as were the plaintiffs in this cause.

5. In July, 1939, the defendant attempted to transfer the timber and lumber business to his brother, Mason. There was no consideration for the transfer and the purpose of it seems to have been most indefinite. The defendant says he wanted to get his brother started and that his brother had been after him to let him run the sawmill, so lie told him to go ahead and that he could have the use of the mill. The brother, Mason, had no capital and it was necessary for the defendant to finance the operations of the mill. This was purportedly done by the defendant opening on his books an account in the name of Mason Warren. The' employees were not notified by the defendant of any change in the ownership of the business and continued to be paid by the defendant, either in cash or merchandise at the defendant’s store, until operations of' the mill ceased in the latter part of 1940. Up to that time, none of the employees had been told that they were working for Mason instead of the defendant, and all of them continued under the belief that they were working for the defendant, who appeared to be generally in charge of hiring and firing employees, giving directions as to length in which logs were to be cut, selling lumber and directing the operations of the mill.

6. The purchase of timber from other persons began shortly after July, 1939, and although Mason Warren claims to have purchased all timber from that date for his own account, and in this he is supported by most all of the witnesses who sold the timber, invariably in every case, while the trade was made by Mason, the timber was paid for by the check of the defendant. In all cases where manufactured lumber was sold, the purchaser understood he was buying the lumber from the defendant and check in payment therefor was made payable to the defendant and cashed by him. The defendant insists that all of these items were either credited or charged to the account that he had opened on his books with his brother, Mason. However, it appears that the mill was owned by the defendant; the machinery and equipment owned by him; the stock and wagons and trucks were owned by him, and no charge seems to have been made against Mason’s account for the use of these items, except in some instances of the hauling of lumber and logs by truck. It appears that Mason was financially and morally irresponsible, had no property whatever, and made no investment in the operations. During the period of the operations, timber was purchased in the states of Tennessee and Alabama and the manufactured lumber sold in interstate commerce.

7. Defendant insists that he had no interest in the operations in question after July, 1939, and that the business belonged entirely to his brother. The only evidence which he has to corroborate him in this insistence, in addition to his own and his brother’s testimony, is the book account which has been exhibited. All these were matters about which plaintiffs had no knowledge whatsoever, and all were employed by the defendant and all understood they were working for him. On account of Mason’s lack of financial responsibility, it is extremely doubtful that any of the plaintiffs would have .performed their work, had they been under the impression they were working for him. The evidence in this cause was presented at different intervals, and after the case had been closed and was under consideration by the Court, the plaintiffs filed a petition in the cause setting up certain contradictory statements made by Mason Warren to two of the plaintiffs and their counsel, and upon the showing made thereon, the Court remanded the cause and reopened the case for further evidence in this connection. Up to that time, the case had given the Court a great deal of worry and concern. The Court was not impressed on the first trial of the cause with the testimony of the witness Mason Warren, but there was nothing definite in his testimony that the Court felt would justify entirely disregarding it. However, after the case was reopened, it appeared from the evidence that after the trial of the cause said Mason Warren sent a postal card to the plaintiff Dave Anders asking him to come to Appleton and talk to him, and upon Anders’, in company with the plaintiff Hollandsworth, calling on Mason Warren, they both testified that Mason wanted to know if he could join up with them and draw his part of the money like they expected to do, as he was only working for a salary like they were, and that he had worked for a while as a partner, but the defendant cut him off and put him on a salary just like the rest of the men, and that he was willing to tell the true situation if he could get his part of the pay. The plaintiff Anders is corroborated in this statement by the plaintiff Hollandsworth, and although it is denied by Mason Warren that he had made any such statement, there is no question but that he did send the card, as it was produced in court, and he could not or would not give any satisfactory explanation as to why it was mailed, and upon the Court questioning the other witnesses particularly as to any possible circumstances which might have caused the card in question to be sent, the Court is unable to find any reasonable excuse for it having been sent, other than the facts testified to by Anders and Hollands-worth. The witness Mason Warren, not only at the original trial of the cause, but particularly, at the hearing after the case was reopened, in testifying was evasive, contradictory, reluctant to make any statement, and apparently so untruthful as to justify the Court placing no credence whatsoever in his testimony. Furthermore, the Court was never at any time very favorably impressed with the straightforwardness of the defendant as a witness.

8. The Court, under all the circumstances, is, therefore, constrained to find that in the timber and sawmill operations after July, 1939, the witness Mason Warren was nothing more than a figure-head; that the business belonged entirely to the defendant; that he was operating it; and that he concealed from the plaintiffs the defense upon which he now relies, and allowed them to continue working under the belief that they were working for him; that he never, at any time, told anyone the operation in question was that of his brother, Mason Warren; that the whole plan was nothing more than a scheme or subterfuge to avoid the responsibilities of the Fair Labor Standards Act, to defraud the plaintiffs of their just wages and compel them to work at the slave wage of one dollar for a ten-hour work day.

9. The plaintiff Floyd Morrison testified in open court that for his part he wished to have this suit dismissed; that in the beginning, he made an agreement with the defendant to work for him for a certain amount and that he was satisfied with it.

Conclusions of Law.

1. The court has jurisdiction of this cause. Section 216, Title 29 U.S.C.A.

2. During the period of time from October, 1938, the date the Fair Labor Standards Act became effective, to July, 1939, the timber operations carried on by the defendant, including the cutting of trees and the manufacture of lumber therefrom, were incidental to the clearing of land owned by defendant in conjunction with his farming operations, and were primarily for the benefit of clearing land for agricultural purposes, and, therefore, plaintiffs in this cause who were working for the defendant during said period of time were employed in agriculture, and fall within subsection (a)(6), Section 213, 29 U.S.C.A. so that they do not come within the provisions of Sections 206 and 207 of the Act.

3. The plaintiffs employed by the defendant during the period beginning July 29, 1939, down to the time defendant ceased operations of his mill in the latter part of 1940, were engaged in commerce or in the production of goods for commerce.

4. The defendant was the real owner and operator of the timber and sawmill operations from July 29, 1939, to the latter part of December, 1940, and he not only employed plaintiffs, but suffered and permitted them to work in said operations, and plaintiffs, except as hereinafter noted, are entitled to a judgment against the defendant for wages at the minimum rate and for overtime as provided by the terms and provisions of the Fair Labor Standards Act, plus an additional equal amount as liquidated damages, and an attorney’s fee in an amount to be fixed by the Court when the amount due the plaintiffs is definitely determined.

5. The suit of Floyd Morrison is dismissed, and judgment will be rendered for the defendant as to his suit and for his proportionate costs.

6. In the ■ event counsel are unable to agree as to the amounts due the various plaintiffs, a reference will be had to a special master to determine the amount for which each plaintiff is entitled to judgment, the costs of the reference to be taxed as a part of the costs of this cause.

7. The plaintiffs will also have and recover of the defendant the costs of this cause, for which execution may issue.

Judgment accordingly.