author: SWYGERT, District Judge.

text:
    UNITED STATES ex rel. HULL v. STALTER, Director of Civilian Public Service Camp.
    Civil Action No. 472.
    District Court, N. D. Indiana, Hammond Division.
    Feb. 9, 1945.
    Victor F. Schmidt, of Rossmoyne, Ohio, for Floyd Eugene Hull.
    Alexander M. Campbell, U. S. Atty., of Fort Wayne, Ind., and James E. Keating, Asst. U. S. Atty., of South Bend, Ind., for defendant.
   SWYGERT, District Judge.

The respondent is the Director of the Civilian Public Service Camp at Medary-ville, Indiana. The petitioner is at present in the camp by reason of an Order to Report for Work of National Importance under Civilian Direction issued to the petitioner under the provision of Section 652 of the Regulations issued under the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix § 301 et seq., and which order was issued by Local Draft Board No. 2 for Perry County, Ohio. Upon a complaint filed by the petitioner in this court for a writ of habeas corpus, a writ issued and a hearing was had.

The facts: The petitioner registered with his local Draft Board on July 1, 1941. His registration card reflects that his employer’s name and address was A. E. Hull Pottery Co., Crooksville, Ohio. The petitioner testified substantially as follows regarding this matter: “When I registered I told the Clerk of the Draft Board that my vocation was a minister but that my avocation was a clerk in the pottery. She put down my occupation as a clerk over my protest. At that time I did have a part time job in the pottery where I had worked for a year prior to that time as an office clerk.”

Thereafter on August 21, 1941, the petitioner filed his Selective Service Questionnaire wherein he stated that he had been a minister of religion of the sect known as Jehovah’s Witnesses since November 1, 1935; that he had been formally ordained on September 19, 1937; and further, that he was preparing for the ministry, which training he expected to complete on September 1, 1941. With his questionnaire he sent to the Draft Board a lengthy letter regarding his claim as a minister of religion and his work as a Jehovah’s Witness together with a copy of a letter dated September 1, 1941, addressed to the petitioner from the Watchtower Bible and Tract Society, containing an appointment to him as a “Pioneer” of the Jehovah Witness sect. He also filed with his questionnaire a “Special Form for Conscientious Objector,” wherein he claimed exemption provided by the Selective Training and Service Act of 1940 for conscientious objectors.

At the hearing on the writ the petitioner testified that because he was ordered by the Draft Board to report for a physical examination on September 5, 1941, he was unable to depart for Minneapolis, Minnesota, to begin his work as a pioneer until September 8th; that on September 11, 1941, he began his work as such and continued without interruption until his induction. On December 9, 1941, he forwarded to the Draft Board a document which he mentioned in the letter filed with his questionnaire on August 21st. This purports to be a photostatic copy of certificate of ordination as a minister of his sect and is signed by the Watchtower Bible and Tract Society by its president, J. F. Rutherford. It carries the notation, “active since November i, 1935.”

Also at the hearing on the writ, the petitioner testified that he had been a Jehovah Witness since he had reached the age of understanding and had been quite active as such since he was fifteen years of age; that he had attended the sect’s international convention in Toronto, Canada, with his parents in 1929, and a similar convention in Columbus, Ohio, in 1931. That in 1937 at another convention in Columbus he attended “baptismal and ordination services” ; that he began performing the “duties of a minister” in McConnelsville, Ohio, in November 1935 (this was substantiated by another witness) ; that he attended other conventions of his sect in 1939 and 1940; and that on August 9, 1941, during the St. Louis convention he was appointed a full-time minister and given a written assignment to begin his duties in Minneapolis on September 1, 1941. Subsequently he sent his draft board many letters and affidavits signed by fellow religious workers, members of his religious creed, and acquaintances, all attesting to his work as a Jehovah Witness Pioneer in Minneapolis, Wisconsin Rapids, Wisconsin and Lawrenceburg, Indiana. He further testified at the hearing that on April 1, 1942, he became a Special Pioneer and thereafter was assigned to Wisconsin Rapids, and from there to Lawrenceburg. At the hearing, it was developed by petitioner’s evidence that in August, 1944, there were eight hundred forty-one Special Pioneers in the Jehovah Witness sect and that this is the highest classification of ministerial work in this religious organization; further, that whereas a Pioneer is required to devote a minimum of one hundred fifty hours per month to church work and organizing “companies,” a Special Pioneer must devote a minimum of one hundred seventy-five hours per month to the same kind of duties.

On September 18, 1941, the petitioner’s Local Draft Board classified him in class I-AO, that is, as a conscientious objector willing to participate in non-combatant service under the direction of military authorities. On an appeal by the registrant, the Board of Appeal on December 10, 1941, affirmed the Local Board’s classification. Thereafter in May 1942, the registrant’s file was returned to the Board of Appeal apparently for other administrative purposes than that of review, and on June 3, 1942, the Board of Appeal reclassified him as IV-D, that is, it gave him a minister of religion status. At the request of the State Headquarters of the Selective Service System of Ohio the Board of Appeal voided or nullified this classification after the State Headquarters had pointed out that no appeal was pending at that time. Thereafter at the suggestion of the Department of Justice, an investigation by a Hearing Officer pursuant to Section 5(g) of the Selective Training and Service Act of 1940 was conducted relative to the petitioner’s claim as a conscientious objector. The Hearing Officer recommended that he be placed in Class IV-E, that is, a conscientious objector available for assignment to work of national importance under civilian direction. Subsequently the Board of Appeal reclassified him as such on February 3, 1944, and on February 8, 1944, the Local Draft Board issued its final order to the registrant to report for Work of National Importance at the Medary-ville, Indiana, Camp.

The issue before the Court is a narrow one. It is whether the petitioner was denied the constitutional protection of due process of law. If the Draft Board acted arbitrarily -or capriciously in classifying him this guarantee was not afforded him. On the other hand, the Court cannot “review” the action of the Board in the ordinary sense of that word and substitute its judgment for the Board’s. The finality of decision is with the draft officials, not the courts. As was stated in Ex parte Stanziale, 3 Cir., 138 F.2d 312, 315: “It is * * * clear that a court’s criterion must be something different from the ‘substantial evidence’ rule so familiar in administrative review.” What then should be the test of whether the due process requirement was observed? If the “substantial evidence” rule is too broad, I am equally of the opinion that the formula laid down in the Stanziale case is too narrow. In that case the test was stated as follows: “The test of whether a Draft Board’s action may be attacked seems to shift from whether its findings are supported by substantial evidence to whether it received and considered what a particular registrant submitted. And lack of such consideration is not here, as it is not elsewhere, proved by proving that the decision was wrong.” Rather than this test, I believe that it should be whether the board had any evidence before it to sustain its result. United States ex rel. v. Cain, 2 Cir., 144 F.2d 944.

The existence or non-existence of arbitrary or capricious action by a draft board in its classification of a particular registrant is essentially the existence or non-existence of a state of mind. It goes without saying that a registrant could seldom, if ever, bring direct evidence (in the sense of assertions by the board members amounting to admissions) of the existence of an attitude on their part that would preclude a fair and impartial determination of his draft status. Consequently and perforce other evidence, circumstantial in nature, must be examined in order for the court to determine the question, narrow but all important as it is.

One of the circumstances, and in many cases perhaps the only circumstance, that would prove arbitrary or capricious action is the fact that there was no evidence before the board upon which it could base the classification which it has made. If it flies in the teeth of the facts which are before it, then its action is arbitrary and the registrant has not been afforded due process of law.

If then this is the test, certain difficulties arise in its application. These difficulties are twofold. One, factual; the other, judicial.

As to the first, the following statements in the Stanziale case are pertinent :

“The task of classification of the nation’s manpower for service in its defense differs greatly from the ordinary administrative action affecting an individual or a group. It is country-wide in scope, it includes a large portion of the population and obviously its operation must be both smooth and swift if the public object is to be accomplished. The enemy will not wait for the process of litigation to determine who must and who may not fight.
“The procedure under the Selective Service Act necessarily, then, differs from the usual administrative routine. There are no hearings of right where witnesses may be called and examined and cross-examined. There is no representation by counsel either on behalf of the registrant or the Local Board. Nor are findings of fact and conclusions of law made. There is no statutory provision for judicial review. The ‘administrative tribunal’, if the Local Draft Board may so be called, is not composed of experts, real or purported, but of citizens of the neighborhood in which their Board functions., In some cases it knows the registrants personally; in all cases it knows its own community. The analogy of the ancient jury of the vicinage suggests itself, composed of men of the neighborhood, who knew what was going on. Questionnaires answered by the registrant and supporting written statements present his status, from his point of view, to the Board. But these are not the sole determinants of his classification. Quotas that must be filled and the number of registrants available for military service within a given community are major factors for the Board’s consideration. All the Local Board does after a consideration of these facts is to place the registrant within one of the given classifications. The registrant, and he alone may then appear personally, of right, before the Board to argue the. correctness of his classification. Appeals to Selective Service Appeal Boards, and in some cases, ultimately to the President, may be had, but only the written file of the registrant goes up on appeal.”

This procedure, peculiar to the Selective Service Act, must be kept in mind when a court assays the evidence submitted in a habeas corpus hearing on the question of whether there was any evidence on which a board could base its decision. There is no transcript of the evidence that is considered by the Board. It is not required to make any record of the facts which it considered in reaching its findings or to state the reasons for its decision. It is conceivable that in many cases it might be quite difficult to ascertain what the evidence or facts were that the Board considered.

However, in the instant case this difficulty is not as real as it may seem. The petitioner’s evidence at the hearing consisted chiefly of papers, documents and forms filed by the petitioner with his Draft Board, supplemented by his testimony regarding his assertions to and his contacts with the Board. He, as well as other witnesses, testified about his spiritual activity and his work in the Jehovah Witness religion, both before and after his draft registration. The Government’s only witness was an Army Officer connected with the Ohio State Selective Service Headquarters, who testified mainly about the chronological steps taken by the Local Draft Board, the Appeal Board and other Governmental officials in connection with the petitioner’s draft status. If the Local Board or Appeal Board had any other and different information about the petitioner, written or unwritten, it is not before the Court. The case must be decided on the evidence submitted. Consequently, it is necessary to invoke the presumption that the evidence before the Court was the only evidence considered by the Draft Board or available to it. To invoke a contrary presumption, viz., that there may be other existing facts although not submitted to the Court but which may have been considered by the Board only would lead a court into a quagmire of speculation and conjecture out of which there could be no return to a sound footing on which to base the required test.

The other difficulty has to do with the evaluation by a court of the evidence submitted to a draft board. In order to conclude that due process was not observed, it is not enough for a court to say that all of the evidence submitted to the Draft Board required a different determination than that made. To state the converse, that there was no evidence on which the conclusion reached could be bottomed, requires an appraisal of the evidence in a different and more particularized light. To so find the court must assert in effect that each particular evidentiary fact is not susceptible of differences of opinion as to what it tends to prove. If any part of the evidence before the draft board is possible of contrary interpretations, one of which would tend to sustain the board’s conclusion, then it cannot be said that there was no evidence before it on which its decision was based. There is a difference between saying that each fact making up the evidence considered by the draft board leads to only one possible deduction and saying that the substantial evidence before the board when taken altogether requires a different classification than that given by the board. In making the first assertion the conclusion to be drawn is that there was no evidence on which it could base its finding; in making the other the court would be substituting its judgment for that of the board.

Applying the test, which I believe is required, to the case at hand and in the light of the foregoing observations, it is my conclusion that there was no evidence before the Draft Board (that is, neither the Local nor the Appeal Board) on which to deny the petitioner’s claim that he be given a IV-D Classification. Section 5(d) of the Selective Training and Service Act of 1940 provides that “regular or duly ordained ministers of religion, and students who are preparing for the ministry in theological or divinity schools recognized as such for more than one year prior to the ■date of enactment of this Act, shall be exempt from training and service * * * under this Act.” Selective Service Regulation 622.44 provides that a “regular minister of religion” is “a man who customarily preaches and teaches the principles of religion of a recognized church, religious sect, or religious organization of which he is a member, without having been formally ordained as a minister of religion; and who is recognized by such church, sect, or organization as a minister,” and that a “duly ordained minister of religion” is “a man who has been ordained in accordance with the ceremonial ritual or discipline of a recognized church, religious sect, or religious organization, to teach and preach its doctrines and to administer its rites and ceremonies in public worship; and who ■customarily performs those duties.”

The law appears to be clear that :an appeal board hears and determines each case which comes to it de novo and that the classification of a registrant by an appeal board supersedes that of the local board. United States v. Pitt, 3 Cir., 144 F.2d 169. See Mr. Justice Rutledge’s concurring opinion in Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305. In the argument of counsel at the conclusion of the hearing it was conceded by the Government that each registrant is entitled to be classified as of the time the classification is made rather than as of the time he registers, or, for that matter, as •of any other time.

With these definitions of a “regular or duly ordained minister of religion” as well as the foregoing constructions of the Selective Training and Service Act in mind, there was no evidence before the Draft Board which precluded the petitioner from the classification of a minister of religion. For purposes of argument it may be conceded that he did not meet the definition of a “duly ordained minister of religion” because, either he was not among those listed as ordained ministers in the Yearbook published by the Watchtower Bible and Tract Society for the period in question, or on .account of the peculiarities of the organizational features of the Jehovah Witness sect. However, there can be no doubt about his being a “regular minister of religion” as defined in the regulation when the Local Draft Board classified him I-AO. Nor was his status changed when the Appeal Board affirmed this classification on December 10, 1941, or when it reclassified him IV-E on February 3, 1944. During all of this time he was a “pioneer,” devoting full time to his religious activities, teaching the tenets of this sect and being recognized by his religious organization as a minister. There is not one iota of evidence on which the Draft Boards could have based a contrary view.

The only evidentiary element that is at all doubtful on this question of status are the facts that at the time the petitioner registered on July 1, 1941, he was working part time in secular activity and that shortly thereafter he received his appointment and became a “pioneer.” This, standing alone, might be inferred as an indication of bad faith on the part of the petitioner in attempting thus to dodge military service. However, all of the other facts concerning this registrant’s varied and constant religious activity both before and after his registration completely dissipates any such inference.

There is one other circumstance which supports the conclusion I have reached in this case. I refer to the Appeal Board’s giving the petitioner a reclassification of IV-D on June 3, 1942, when on a prior date it had affirmed the local Board’s classification of I-AO. Although this reclassification was abortive because no appeal was pending at the time, such contrary action by the same Board on the same evidence is not without its potent significance.

Perhaps it is not germane to a determination of this case, but I feel compelled to observe that there may be some who profess to be believers in the Jehovah Witness sect who claim to be “regular or duly ordained ministers of religion” who are not such in fact. There may be, also, instances where the draft boards have ample evidentiary reasons for denying those who claim to be “pioneers” a IV-D classification. But because some may attempt to avoid military service without sufficient evidentiary or legal reasons, those who in good faith believe themselves to be and in fact are “regular ministers of religion” should not be denied the exemption to which they are entitled. Each registrant must be considered by a draft board on his own merits; likewise, such cases as these must be adjudged by the courts on the peculiar facts presented in each individual case.

The petitioner is discharged from the custody of the respondent and his Selective Training and Service Act file and the proceedings relating thereto are remanded to the Appeal Board for the purpose of classifying the registrant properly, pursuant to the order of the court entered herein today.


source: Caselaw Access Project

author: CHESNUT, District Judge.

license: Public Domain

text:
    UNITED STATES v. 8286 SQ. FT. OF SPACE IN PACA-PRATT BLDG., CITY OF BALTIMORE, MD., et al.
    Civ. No. 2260.
    District Court, D. Maryland.
    July 25, 1945.
    Wilmer H. Driver, Sp. Asst. to Atty. Gen., and Milton W. Schlutter, Sp. Atty., Dept. of Justice, for plaintiffs.
    Frank B. Ober (of Ober, Williams & Stinson), of Baltimore, Md., for defendants.
   CHESNUT, District Judge.

In this federal condemnation case the .government had taken under the Second War Powers Act of 1942, 50 U.S.C.A. Appendix § 631 et seq., and on June 17, 1944 occupied, 8286 square feet of space on the 8th floor of the Paca-Pratt Building (heretofore known as ■ the Sonneborn Building) in the City of Baltimore, for office use by the Baltimore Cargo Port of Embarkation. The term for which the space was originally taken was for a term of years ending June 30, 1945, which, however, by notice duly given and filed in this proceeding with deposit of agreed upon rental, has now been extended until June 30, 1946. At the time the government took possession of the office space it was under lease from the owner, The Paca-Pratt Realty Corporation, to Lee Cohen and Harry Gray, co-partners trading as Hy Grade Fur Company, by a written lease dated April 30, 1943 for one year commencing on the 1st day of May 1943, and ending on the 30th day of April 1944, “or until the stipulated term shall as hereinafter provided sooner cease or be terminated or be renewed or continued, at the annual rental of $3237.60”. The lease provided that in the absence of sixty days written notice prior to expiration, it should be renewed for the further term of a year upon the same conditions as to rental and otherwise. Under date of February 29, 1944 the landlord undertook to give the sixty day notice of termination to the tenant but the letter mailed at the office of the landlord in New York City was not received by the tenant until several days later, and therefore was not a timely notice for termination; in consequence of which the lease was automatically renewed to terminate April 30, 1945.

On July 12, 1944 the former tenants ot the space, the Hy Grade Fur Company, filed a claim, and an amendment thereto on June 19, 1945, for just compensation. The United States has filed a motion to strike the claim on the ground that the tenant is not entitled to any compensation for the taking in the circumstances of the case. At the trial of this issue the parties waived a jury and the case was heard upon the evidence submitted. The pertinent and controlling facts found from the evidence can be briefly stated.

The Sonneborn (now Paca-Pratt) Building is situated in the business district of Baltimore City. It was originally occupied and used for the manufacture of clothing, but more recently, after a change of ownership, it has been rented to various tenants for manufacturing and other purposes.

The Hy Grade Fur Company, now a partnership, successor to a corporation of the same name, had been a tenant of the condemned office space for about fifteen years under successive leases.' It used the premises for the manufacture of comparatively inexpensive fur coats. It had equipped the space with machinery and other trade tools and fixtures appropriate for the business. By reason of the government’s taking possession it was obliged to remove its fixtures on very short notice, and to temporarily relocate for a few months in another building nearby, and then to again remove to another more permanent location. It has filed an itemized claim for expenses of removal of its fixtures to these new locations and the cost of adapting machinery to the new location, and similar expenses in the amount of $4459.88, with a separate and additional claim in the amount of $4500 for damages based on interference with and diminution of business by reason of the necessary relocations. It has offered evidence tending to support most of the items of its claim. It is, however, not necessary to determine the exact amount of damages sustained. Under no aspect of the case could the claim for damages to the business be allowed. A number’ of separate items for moving expenses and kindred items would also have to be disallowed even if the claimants were entitled to some recovery; but the testimony is convincing that the claimants undoubtedly sustained substantial actual consequential damages in the amount of several thousand dollars due to expenses of moving and readaptation of machinery necessitated by change in location and inaccessibility of the kind of electric power current previously used in the Paca-Pratt Building.

The lease was on a long printed form, the 14th Article of which reads as follows: “Fourteenth: It is mutually convenanted and agreed that if the whole or any part of the premises shall be required, taken or condemned by any competent authority for any public or quasi-public use or purpose, then in any such event this lease and the term and any renewal and all rights and liabilities of the parties, each to the other, thereafter accruing, shall cease and expire and become null and void from and after the date when such possession shall be required or title be vested, without apportionment to Tenant of the award or other compensation, if any, by reason of such requisition, taking or condemnation; but nothing herein contained shall deprive Tenant of the right, if any, to receive from the requisitioning or condemning authority award for compensation or loss of or damage to any of Tenant’s tangible property or business, provided the same is not in diminution of the award or compensation payable to Landlord; and Tenant shall make payment of all rent and other charges accrued and pro-rated to the date of such requisition, taking or condemnation.”

The basic rental rate for space in the Paca-Pratt Building has been 40 cents per square foot. An agreement has been made between the government and the building owner that the rental to be paid by the government during its temporary occupation of the space condemned, shall be at the rate of 50 cents per square foot per year, but with reduction to 45 cents per square foot to July 1, 1948, if the government occupies the property that long, in consequence of certain improvements to an elevator made at government expense. The rental paid by the claimants was at the rate of about 40 cents per square foot. It is contended by the government that the increased rental agreed to be paid by it is in consideration for additional services to be performed by the landlord particularly in that the office space will be occupied by many more employes than those heretofore serving the claimants. This reason for the increased rental is disputed by the claimants as a matter of fact. It is unnecessary to decide the point in this case.

My conclusion is that the claimants are not entitled to recover, principally by reason of the fourteenth article of the lease quoted above.

Opinion

Counsel for the claimants relies on the recently decided case of United States v. General Motors Corporation, 323 U.S. 373, 65 S.Ct. 357, 361. This now well known federal condemnation case dealt with the admissibility of evidence for the determination of just compensation in “an extraordinary and unusual” situation. The particular case involved a taking by the government for temporary occupancy of a warehouse, then under a long term lease to the tenants who were claimants in the case. The court was dealing with a situation in which presumably the government’s occupation would be much less in duration than that of the tenant’s lease, and after the termination of the government occupation the tenants would resume occupancy. The tenants had equipped the building with costly trade fixtures which it was necessary to remove and store during the temporary occupation. At the trial of the case the measure of damages allowed the tenant claimant was limited to the determination of the fair market price for the -rental of the property on the basis of a long term lease, which resulted in a verdict for a sum for the temporary occupation by the government of even less than the rental which the tenants were paying to the landlord. The tenants had offered evidence of moving and storage expenses and damage to fixtures which had to be removed. This evidence was rejected by the trial judge. In holding that the evidence should have been received, it was said in the opinion of the Supreme Court by Mr. Justice Roberts (323 U.S. at page 383, 65 S.Ct. at page 362): “Such items may be proved, not as independent items of damage but to aid in the determination of what would be the usual- — the market — price which would be asked and paid for such temporary occupancy of the building while then in use under a long term lease. The respondent offered detailed proof of the amounts actually and necessarily paid for these purposes. We think that the proof should have been received for the purpose and with the limitation indicated. Proof of such costs as affecting market value is to be distinguished from proof of value peculiar to the respondent, or the value of good-will or of injury to the business of the respondent which, in this case, as in the case of the condemnation of a fee, must be excluded from the reckoning.”

In the instant case the original taking by the government extended for a period beyond the term of the claimants’ lease. For this reason counsel for the government contends that the case is not ruled by the General Motors case. Counsel for the claimants, however, points out that his clients had occupied the space as tenants for fifteen years in the past and had every reasonable expectation of continuation of the lease from year to year thereafter. And in this connection reference is made to a very recent decision in the 10th Circuit in United States v. Petty Motor Co., 147 F.2d 912. In that case some of the tenants of the building taken by the government for temporary occupation were in possession under only monthly leases but they had been long time tenants occupying the premises under the same arrangement. The court held that the record justified the conclusion that the tenancies would have continued for an indefinite period had not the government begun condemnation proceedings. It was held on the authority of the General Motors case that each of the tenants was entitled to just compensation. The trial court had instructed the jury that in determining the amount they might consider evidence as to the cost of moving, remodelling, reinstalling equipment and increased rents — “that while these items Were not recoverable as such, yet they were proper to consider with all the other evidence in determining the value of their right of occupancy or the just compensation which should be paid to each tenant.” On appeal the government contended that the rule of the General Motors case was not applicable because it was limited to the particular situation above described wherein the government’s occupancy was temporary only and did not extend to or beyond the term of the lease of the tenant. But the court rejected this contention saying (147 F.2d at page 914): “The basic principles announced in the General Motors case are not confined to the narrow facts involved therein. We are convinced that the principles announced therein are controlling under the facts as presented here. Otherwise, the government would in this case convert the Fifth Amendment from the guarantee of just compensation into an instrument of confiscation.” It is said by counsel that certiorari has been granted in the case.

I do not find it necessary in this particular case to rule upon the issue of law, whether or not the General Motors case is applicable to the instant case, because I have reached the conclusion that the tenant claimants are not entitled to recover here by reason of the 14th Article of the lease.

Prior to the present World War the government’s condemnation of private property for public use was almost invariably exercised by the taking of the whole fee interest in the property. And in a long line of cases, as pointed out in the General Motors case, 323 U.S. at page 379, 65 S.Ct. at page 360, the rule has been firmly established that in such takings consequential losses to the owner or tenant, such as removal expenses and business losses, were not allowable as just compensation in addition to the market or fair value of the fee interest so taken. It was said by Mr. Justice Roberts: “But the courts have generally held that they are not to be reckoned as part of the compensation for the fee taken by the Government. We are not to be taken as departing from the rule they have laid down, which we think sound. Even where state constitutions command that compensation be made for property ‘taken or damaged’ for public use, as many do, it has generally been held that that which is taken or damaged is the group of rights which the so-called owner exercises in his dominion of the physical thing, and that damage to those rights of ownership does not include losses to his business or other consequential damage.”

It is clear enough, therefore, that the claimants in this case are entitled to compensation only for any interest in the subject condemned which they may have possessed at the time of the taking by the government. More specifically, if the claimants’ lease expired on the day the government took possession, then the claimants had no interest in the property taken by the government. And this seems to be very clearly and expressly the effect of the 14th Article of the lease. It provided that in event of condemnation of the leased premises, “then in any such event this lease and the term and any renewal and all rights and liabilities of the parties, each to the other, thereafter accruing, shall cease and expire and become null and void from and after the date when such possession shall be required or title be vested, without apportionment to Tenant of the award or the compensation, if any, by reason of such requisition, taking or condemnation.” The further qualifying provision of the Article, that nevertheless the tenant should have the right to receive from the condemning authority compensation for damage to the tenant's tangible property or business, is not here applicable because there was no such direct damage to the tenants’ fixtures by the government. By the 16th Article of the lease the tenant agreed to remove his fixtures and property upon the termination of the lease. It is true that the claimants offered evidence tending to show business losses but these would not have been recoverable against the government even under the General Motors case.

Clauses similar to the 14th Article of the lease in this case are commonly referred to as “full condemnation clauses”. Such provisions are frequently inserted in long formal leases although I think they have heretofore not been generally customary in leases of Baltimore City property. The question of the legal effect of the condemnation clause on the right of a tenant to recover against the condemning authority has been considered and decided in a number of comparatively recent federal condemnation cases and also in older state court decisions. Necessarily each case depends upon the wording of the particular provision in the lease as applied to the facts of the case. Where the wording of the clause is similar to that in the instant case the courts have very uniformly held that the dispossessed tenant is not entitled to recover against the condemning authority. It is doubtless true that the condemnation clause is inserted primarily for the benefit of the landlord and to preclude any diminution of the condemnation award to him by the participation of the tenant in the benefits of the award. But it is equally clear that if by the proper construction of the clause the interest of the tenant is ended and determined by the fact of condemnation, then the tenant has no com-pensable interest in the property condemned.

In United States v. Improved Premises, D.C.S.D.N.Y., 54 F.Supp. 469; In United States v. 3.5 Acres, D.C.Mass., 57 F.Supp. 548; and in United States v. 21,815 Sq. Ft., D.C.E.D.N.Y., 59 F.Supp 219, the condemnation clauses all provided that in the event of condemnation the lease should terminate, and in all the cases it was held that the dispossessed tenant was not entitled to recover compensation against the federal government. To the same effect, see also the following earlier state cases: Munigle v. City of Boston, 3 Allen 230, 85 Mass. 230; Goodyear Shoe Machinery Co. v. Boston Terminal Co., 176 Mass. 115, 57 N.E. 214 (Holmes, J.); In re City of New York, Triborough Bridge, 249 App.Div. 579, 581, 582, 293 N.Y.S. 223, affirmed without opinion 274 N.Y. 581, 10 N.E.2d 561; Matter of City of New York, Allen Street, 256 N.Y. 236, 176 N.E. 377; In re City of New York, 168 N.Y. 254, 61 N.E. 249. See also other cases collected in 98 A.L.R. 254, and Article in 31 Va.Law Rev. 539, 547. United States v. Certain Parcel, D.C.M.D.Pa., 51 F.Supp 811, is to the same effect in principle although the wording of the clause was somewhat different.

In United States v. Four Parcels of Land, D.C.S.D.N.Y., 20 F.Supp. 306, 309, the tenant was permitted to recover because in addition to the printed wording of termination of the lease, there had been the condemnation clause providing for added in typewriting the following sentence: “Any award for the fee to belong solely to the landlord; any award for the leasehold interest to belong to the tenant.” Under the particular facts of the case it was held this added sentence was controlling and permitted the tenant to share in the award. In United States v. 194,717 Sq. Ft., D.C.N.J., 60 F.Supp. 314, 315, the dispossessed tenant was also allowed to recover against the government despite a condemnation clause. But it will be noted from the opinion that the situation with respect to the tenant’s lease was quite different from that in the instant case. The City of Newark had leased the hangar on the Newark Airport to the Brewster Aeronautical Corporation for a long term lease not expiring until March 1, 1948. Thereafter the City of Newark leased the airport to the United States for three months with option for renewal from year to year. The option had been exercised thereby extending the term to June 30, 1944. The City’s voluntary lease to the government was made subject to the existing leases on the property, and it was provided the government should enforce the provisions of the existing leases and upon the termination of its occupation should reassign them to the lessor; “provided that the rights of the tenants only under said leases as in force or as hereafter amended shall be recognized by the Government.” Subsequently the government condemned the temporary use of the hangar which had been leased to the Brewster Company. It was held by the district judge that the only property taken by the government was the interest of the Brewster Company as tenant. This case is, therefore, distinguishable on the facts. At the time of the condemnation it appears that in effect the government was itself the lessor. Possibly it was considered that this amounted to an eviction of the tenant by its lessor, which ordinarily gives rise to an action for damages. But compare Goodyear Shoe Machinery Co. v. Boston Terminal Co., 176 Mass. 115, 57 N.E. 214 (Holmes, J.) where the interest condemned was a leasehold estate only and the condemnor was the owner of the reversion; where the lease contained a condemnation clause; and where it was held the lease nevertheless expired when the condemnor gave notice of termination of the lease incident to its own act of exercising its authority to condemn. It was-pointed out in the opinion that the covenant for quiet enjoyment in the lease was not breached by the exercise of the sovereign right of eminent domain.

It may also be noted that in the above referred to case of United States v. Petty Motor Co., it is stated in the opinion of the court that a five-year lease to one of the tenants making claim for compensation contained a condemnation clause which terminated the lease if the premises were condemned; but the clause is not quoted in full. Apparently the tenant was nevertheless permitted to recover although it does not definitely appear from the opinion whether the clause was relied upon by the government, and there seems to have been no discussion of the point in the opinion.

Counsel for the claimants have submitted an extended and well expressed argument against the applicability and force of the condemnation clause in the lease. The contentions are (1) that properly construed the clause applies only between the landlord and tenant and therefore does not bar the claim against the government; (2) that even if the clause were otherwise applicable, it applies only where the government takes the fee interest of the landlord and does not apply where, as here, the government has taken only a temporary occupancy and (3) that in this case there was really no condemnation at all, because after the original taking by the government the landlord agreed with the government as to the amount of the award to it by entering into an agreement for a new rental. I do not think any of these contentions are tenable in view of the plain wording of the condemnation .clause in this case; but I will comment on them briefly.

As to the proper construction of the condemnation clause, emphasis is sought to be placed on the wording “and all rights and liabilities of the parties each to the other, thereafter accruing, shall cease and expire and become null and void”; and also upon the concluding proviso which preserves the tenant’s rights “if any” to compensation for loss or damage to the tenant’s tangible property or business. (Italics supplied.) But this contention ignores other wording which is here applicable. Reading the clause as a whole it is entirely clear that four things are definitely provided in the event of condemnation. They are (1) the lease expires; (2) the rights of the parties inter sese for the future thereupon terminate; (3) the tenant is not to be entitled to any apportionment of the award to be made by reason of the condemnation except that (4) if the condemning authority damages the tenant’s tangible property or business the latter shall not be deprived of the right, if any, to receive compensation for such loss or damage, provided the same is not in diminution of the award or compensation payable to the landlord.

It is argued that the words of the clause “each to the other” in some way limits or modifies the phrase which provides that the lease expires. But the context shows clearly enough that the one clause does not modify the other but is in addition to the other. The meaning is that in the event of condemnation (l) the lease expires and (2) the rights and liabilities of the parties “each to the other” thereafter accruing also expire and become null and void. -

True it is that if the tenant has a legal right to recover against the condemning authority for loss or damage to his tangible property or business (in which of course the landlord is not interested) then the tenant is not deprived of that right by the condemning clause. But this proviso is not applicable under the facts of this case. By another clause of the lease, upon its termination the tenant was required to remove its property and in fact did so in this case. The government did not in any way damage or interfere with the tenant’s fixtures; nor was there any proof in the case of direct damage to any of the tenant’s tangible property other than what possibly may be inferred from the necessity for twice removing to new locations; and as to this there was no evidence of specific damage to the fixtures. As has already been pointed out, under no aspect of the case could the tenant recover for business losses consequential upon the enforced removal.

It is also argued that the government is only an incidental beneficiary of the condemnation clause, and should not be allowed to take advantage of it. This contention is not new. It was advanced and rejected- in some of the older cases. The short answer given is that as the lease expires by its own provision when condemnation occurs, the lessee has no property interest taken by the government, and therefore has- no provable damage. In re Third St. Improvement in City of St. Paul, 178 Minn. 552, 228 N.W. 162; Munigle v. City of Boston, 3 Allen, Mass., 230; Scholl’s Appeal, 292 Pa. 262, 141 A. 44.

No authority is cited in support of the contention that the condemnation clause applies only when the government takes the leasehold fee interest. It is argued in support of the contention that the parties must have so intended because condemnation clauses of this general purport have been customary in long formal leases for many years in the past, while it has not been the customary practice for the condemning authority prior to the Second War Powers Act of 1942 to condemn temporary occupancy only. I find nothing in the context or wording of the condemnation clause to limit its applicability to condemnation of the landlord’s fee interest. In the instant case the premises leased consisted not of an entire building but only of space on one floor of a large building in which there were numerous tenants. The wording includes the event of the taking of the “whole or any part” of the premises. It is true that in most of the reported cases the condemning authority has apparently taken the landlord’s entire fee interest. But see Goodyear Shoe Machinery Co. v. Boston Terminal Co., 1900, 176 Mass. 115, 57 N.E. 214; and Duckett & Co. v. United States, 1924, 266 U.S. 149, 45 S.Ct. 38, 69 L.Ed. 216. The reason for the insertion of the clause is equally applicable to a taking of temporary occupancy as well as where the fee is taken. And in the particular instance it seems clear that the parties so intended. The contention was expressly considered and overruled in United States v. 21,815 Sq. Ft., D.C.N.Y., 59 F.Supp. 219, 221, where the government took temporary occupation only. In his opinion District Judge Abruzzo said: “When these clauses were agreed upon between the landlord and tenant, it must be borne in mind that the war powers of the different governmental agencies gave the right to acquisition of occupancy only. The language of the condemnation clause is in itself all embracing and I think it included the condemnation of any property whether the fee was taken or only use and occupancy.”

And in United States v. Improved Premises, etc., D.C.N.Y., 54 F.Supp. 469, 471, 472, a similar condemnation clause was held applicable where the government condemned only a temporary occupancy. It is pointed out by counsel for the claimants here that this latter case was decided before the General Motors case, but that fact seems irrelevant as there was apparently no similar clause in the lease considered by the Supreme Court in that case.

Finally, it is argued that there was in fact no real condemnation at all in this case and therefore the clause is inapplicable. The facts are that on June 14, 1944 the government filed its petition in the usual form in this case for the condemnation of the office space “for a term of years ending June 30, 1945, extendible for yearly periods thereafter during the existing national emergency”. The petition referred to several Acts of Congress (including the Second War Powers Act of March 27, 1942), which authorized the acquisition of land for military or other war purposes, and also authorized the Secretary of War to acquire on behalf of the United States by condemnation such tracts or parcels of land in the State of Maryland as may be necessary in his discretion, for use of the Baltimore Cargo Port of Embarkation in the City of Baltimore ; and alleged that the necessary money was available therefor. The petition further recited that the Secretary of War had determined to acquire 8286 square feet of space on the 8th floor of the Paca-Pratt Building for use in connection with the Baltimore Cargo Port of Embarkation by condemnation under judicial process; and that under the Second War Powers Act the United States was authorized to take immediate possession of the said property and the Secretary of War had requested that an order be obtained for immediate possession. The parties defendant named in the petition were the Paca-Pratt Realty Corporation (the landlord), F. Leonard Maas, its resident manager, and Hy Grade Fur Company, the claimants in this case. On the petition the court passed an order that the premises should be surrendered to the United States on June 17, 1944. After notice the several defendants answered. On July 13, 1944 the Paca-Pratt Realty Corporation answered and prayed “that it be given judgment against the United States for such sum as shall be found just and reasonable compensation for the taking of space in the Paca-Pratt Building sought to be condemned in this proceeding”. On July 12, 1944 the present claimants answered making claim for just compensation and filed with their answer a copy of their lease of the premises. Quite some time thereafter it appears from the evidence in the case that the government and the Paca-Pratt Realty Corporation, the landlord, agreed upon the award of compensation to be made. On May 29, 1945 written notice was filed in the case by counsel for the United States giving notice to the Paca-Pratt. Realty Corporation and others that the Secretary of War had exercised the election to extend the term described in the original petition for condemnation from June 30, 1945 to June 30, 1946; and on June 14, 1945 the government deposited in court $3873.74 in payment of the estimated award for the taking of the floor space.

The claimants’ contention is that under these facts there has been no condemnation in fact and therefore the clause is not applicable. It is true that there seems to have been no formal judgment award in the case in favor of the landlord. But it is also clear that the amount of the award to which the landlord was entitled has been agreed upon and either paid or deposited in court. But however that may be, the operative effect of the condemnation clause is not limited to a situation in which there has been a formal condemnation award. The clause reads that if the premises shall "be required, token or condemned", then in such event the lease expires “from and after the date when such possession shall be required or title be vested, without apportionment to tenant of the award or other compensation, if any, by reason of such requisition, taking or condemnation.” (Italics supplied.) The recital of the record procedure shows clearly that the premises were required and possession thereof was taken under an order of court passed on the formal petition for condemnation. Thus it is clear that the event expressly contemplated by the clause did occur.

There is perhaps a suggestion implicit in the argument that the whole procedure was collusive between the landlord and the government for the purpose of dispossessing the tenant without liability either to the landlord or the government. But as this contention is not clearly and expressly made, and the evidence is not sufficient to warrant such a conclusion, it seems unnecessary to discuss it.

The argument is also made that it was the condemnation, rather than the clause in the lease, that was the real cause of the damage to the tenants; that is, that the condemnation preceded the coming into play of the provision of the lease; and therefore the damage was done by the condemnation before the lease was caused to expire by the provision in the lease. But this contention is clearly untenable under the wording of the clause. See also In re Third St. Improvement in City of St. Paul, 178 Minn. 552, 228 N.W. 162.

Finally it may be observed that it is expressly clear from the condemnation clause that the tenant was not entitled to any apportionment of the condemnation award. And in this connection it is to be borne in mind that in these condemnation cases the government has the right to have the award made as one entire sum to cover just compensation to all interests taken in the proceeding although for convenience in practice, either in the inquisition to be found by the jury or by the subsequent proceedings, the amount of the award may be distributed among those respectively entitled thereto. Meadows v. United States, 4 Cir., 144 F.2d 751, 752, 753. The clear meaning of the condemnation clause in this case is that the whole award for the government’s temporary occupation of the leased premises should go to the landlord without participation of the tenant therein. The necessary result is that the tenant has no right to share in the award for the taking of the premises. If, however, the taking resulted in damages to the tenant’s property or business, in which the landlord is not interested, in addition to and separate and apart from the taking of the premises itself, then the tenant’s right, if any, to recover in this case against the government was not destroyed by the condemnation clause. In this case the taking by the government caused no direct damage to the tenant’s tangible property. And consequential losses, such as expense of moving and storage and readaptation of machinery, would be admissible in evidence (under the General Motors case) only as they might in some measure constitute evidence of the fair value of the tenant’s remaining term of the lease. It seems to necessarily result that the claimants in this case have no establishable right to compensation because their lease expired when possession of the property was given to the government in the condemnation proceeding.

I conclude, therefore, as a matter of law that the claimants in this case are not entitled to any compensation and their claim must be dismissed. Counsel may present the appropriate order in due course.


author: DUFFY, District Judge.

text:
    BOWLES, Adm’r, OPA, v. FRUIT GROWERS CO-OP.
    Civil Action No. 1583.
    District Court, E. D. Wisconsin.
    July 9, 1946.
    Robert P. Stebbins, Dist. Enforcement Atty., O. P. A. Office, and Francis A. Murphy, Enforcement Atty., O. P. A. Office, both of Green Bay, Wis., for plaintiff.
    Lougee Stedman, of Sturgeon Bay, Wis., for defendant.
    Victor M. Harding, Jr., of Milwaukee, Wis., amicus curiae. ”
   DUFFY, District Judge.

This is an action for treble damages. The administrator claims that the defendant co-operative association sold cherries between July 31,1943, and September 10, 1943, at prices in excess of the maximum prices established therefor by Maximum Price Regulation No. 306, as amended, and Order 51 issued thereunder.

During the 1943 season defendant washed, pitted and graded fresh red sour cherries, packing them in various sized containers, and covering them with sugar in the proportion of 1 lb. of sugar to 4 lbs. of cherries. The containers were not hermetically sealed.

The question to be decided is: Was the defendant subject in 1943 to Maximum Price Regulation 306 as amended? Stated differently, we must determine whether the sale by defendant of freshly picked cherries, washed, graded and pitted, and deposited in unsealed cans and barrels, and over which sugar had been poured in the ratio of one part to four parts cherries, constituted the sale of canned, preserved or processed fruit within the meaning of MPR 306 as modified by Amendment 11.

The containers were not hermetically sealed. Hence the cherries were of course not canned. Nor is any contention made that they were preserved by the process described, but the administrator does insist that the cherries were processed within the meaning of the regulation. The washing, grading, and pitting of fresh cherries clearly is not processing. It is a question, however, whether the addition of sugar in the proportion heretofore stated brings them into that classification.

Par. 1341.551(e) of MPR 306 provides: “ ‘Processor1 means the canner, manufacturer or packer, as the case may be, of any item covered by this regulation.” And subsection (h) provides: “ ‘Packed’ means processed and enclosed in any container, whether or not hermetically sealed.” Such definitions are not very helpful in solving our problem. Saying in effect that a processor is one who processes is not very enlightening.

Under MPR 425 issued July 5, 1943, a price ceiling was set on sales of fresh fruits to any processor and specifically refers to “cherries, red, sour, pitted.” Section 2(a) says: “ ‘Processor’ means a person who commercially processes the fresh fruit, berry or vegetable being priced. For exam-pie, one who cans or freezes the product being priced, or who uses it in making confectionery or bakery products, is a ‘processor.’ ”

MPR 426 states that maximum prices are set for certain fruit including red sour cherries “by the addition of the cost of transportation (including refrigeration and other protective services) and a stipulated dollar-and-cent markup.”

Plaintiff has failed to meet the burden of proof upon him to establish that the cherries sold by defendant in 1943 were processed. The evidence clearly establishes that the addition of the sugar was only a temporary expedient. One witness testified that the addition of sugar in a one to four ratio would keep the cherries from spoiling for two to three weeks providing they were kept at a low temperature. Another testified that the addition of sugar in that proportion would not prolong the life of the cherries. Assuming, and I find to be the fact, that the sugar temporarily arrests deterioration, it merely acts similar to refrigeration and does not change the cherries from the category of fresh fruit. In Corn Products Refining Co. v. Federal Trade Commission, 324 U.S. 726, 65 S.Ct. 961, 970, the court referred to the term “processing” which is undefined in the Robinson-Patman Act, 15 U.S.C.A. § 13(e), and said: “ * * * While the Act does not define the term ‘processing’, the conversion of dextrose into candy would seem to conform to the current understanding that processing is a mode of treatment of materials to be transformed or reduced to a different state or thing. * * * ” In the case at bar the cherries were not transformed or reduced to a different state or thing. They remained perishable fresh fruit.

The letter dated July 24, 1943, received by defendant from the chief counsel of the Green Bay Office of the O. P. A., while perhaps not binding on the administrator, is at least persuasive. It stated, “Cherries become processed food only when they are packed in hermetically sealed containers and sterilized by the use of heat, or when they are frozen.” While this letter was concerned with rationing rather than pricing, yet where the regulation contained no adequate or understandable definition it is not surprising that in 1943 the defendant considered its product was not processed.

Also persuasive is that on July 28, 1944, the administrator issued an -order to its’ district directors on the subject, “Marketing of Cherries,” instructing them to cease granting sugar to cherry growers who were shipping fresh picked cherries over which sugar had been poured in the ratio of four to one or five to one. The order reads: “Sugar so used does nothing to preserve the cherries.” The cherries in question were not rendered immune to decay and spoilage by the addition of the sugar. Sugar was added so as to enable the defendant to reach fresh fruit markets not more than nine or ten hours hauling distance and having the cherries delivered in an unspoiled condition. If the cherries had been canned or frozen or dehydrated so that spoilage would not occur for an indefinite period, they could properly be regarded as processed, but the cherries in question were .not processed and the motion of the defendant for judgment will be granted.


text:
    UNITED STATES v. 385 ACRES OF LAND IN MILWAUKEE COUNTY, WIS., et al. STATE OF WISCONSIN et al. v. STIMSON, Secretary of War, et al.
    Civil Actions Nos. 2229, 2326.
    District Court, E. D. Wisconsin.
    May 26, 1945.

      Timothy T. Cronin, U. S. Atty., of Milwaukee, Wis., Robert MacLeod and Victor McCrea, of Lands Division of the Department of Justice, both of Washington, D. C., and John T. Harrington, Sp. Atty. for Department of Justice, of Madison, Wis., for the United States, the Secretary of War, et al.
    William J. McCauley, Dist. Atty. for Milwaukee County, and Joseph Tierney, Deputy Dist. Atty. for Milwaukee County, both of Milwaukee, Wis., for County of Milwaukee and State of Wisconsin.
   DUFFY, District Judge.

Statement of Facts.

On May 5, 1945, a proceeding was instituted in this court to condemn certain property in Milwaukee County, Wisconsin, generally known as the Milwaukee House of Correction, for use by the United States of America for military purposes as a military disciplinary barracks.

The condemnation proceeding was instituted at the request of the Secretary of War pursuant to authority conferred by the Act of Congress approved August 18, 1890, 26 Stat. 316, as amended by the Acts of Congress approved July 2, 1917, 40 Stat. 241, April 11, 1918, 40 Stat. 518, 50 U.S.C.A. § 171, March 27, 1942, the Second War Powers Act 1942, § 201, 56 Stat. 177, 50 U.S.C.A.Appendix, § 632, as amended by the Act of Congress approved December 20, 1944, Public No. 509, 78th Congress, 58 Stat. 827, 50 U.S.C.A.Appendix, § 645. Funds for payment for the land condemned were appropriated by Act of Congress approved June 28, 1944, Public No. 374, 78th Congress, 58 Stat. 573.

On May 7, 1945, after notice to the County of Milwaukee, Wisconsin, and a hearing, an order was entered by the court providing that the United States of America should “acquire the right of exclusive possession of the condemned premises effective at twelve o’clock noon on the 28th day of May, 1945,” and further providing that “the respondent County of Milwaukee, and its agents and servants shall surrender possession of said premises to the authorized agents of the Secretary of War on said hour and date.”

On May 8, 1945, the County of Milwaukee, Wisconsin, filed a motion to vacate the order of possession entered on May 7, 1945, which motion was set for hearing today, contending that:

1. This proceeding contravenes and violates the Constitution of the United States and of the State of Wisconsin, in that the taking of said House of Correction is unlawful and unwarranted interference by the military authority of the United States and with the civil governmental functions of the County of Milwaukee and State of Wisconsin.

2. The power and authority sought to be exercised in this proceeding by the Secretary of War is in excess of the power vested in the Secretary of War by the War Powers Act.

3. The object of this proceeding is an assumption of power and authority by the Secretary of War which was not contemplated or intended to be granted by Congress at the time of the passage of the War Powers Act.

4. The exercise of the power of condemnation of the House of Correction is unwarranted and unlawful interference with the civil governmental functions of the County of Milwaukee.

5. The determination by the Secretary of War that necessity exists for the condemnation of the House of Correction is an abuse of his discretionary powers and said determination is arbitrary, unwarranted and capricious.

The government in opposing this motion contends that under the above-mentioned acts authorizing condemnation]- the government is entitled to take immediate possession of the property, that the determination by the Secretary of War of the need of the government for immediate possession is not subject to judicial inquiry or review, and that this court is without power and authority to prevent or interfere with the government from taking immediate possession of the property.

On May 19, 1945, the County of Milwaukee commenced the second action, Civil No. 2326, seeking to restrain the defendants named in the complaint from exercising any rights under the order of possession entered in the condemnation proceeding or from taking possession of the property sought to be condemned by the United States of America. Briefly stated, the gist of the action is “that the action of the Secretary of War under the circumstances existent in this particular case, and on the particular state of facts constitutes an unwarrantable interference with the property of Milwaukee County, and that in so doing he acted in excess of his authority under the law under which he purportedly claims to act,” and “that this action of the Secretary of War is an abuse of power, arbitrary, unwarranted and capricious,” and “that the said Secretary of War if and when the order of May 7, 1945, is carried into effect, will thereby unlawfully interfere with the established and existing civil authority in Milwaukee-County and the State of Wisconsin * * * and thus imperil the public safety * * * that irreparable damage will result to the State of Wisconsin and Milwaukee County.”

The several defendants appeared specially to challenge the jurisdiction of the court and moved the court to dismiss this action, contending that:

1. This court is without jurisdiction because this suit is, in effect, an action against the United States without its consent;

2. The Secretary of War is an indispensable party and is not subject to the jurisdiction of this court and not subject to process of this court, he being an inhabitant of and his official headquarters being in the District of Columbia;

3. That the defendants other than the Secretary of War are subordinate officials in this matter and are not subject to restraint in the absence of the Secretary of War as a party defendant; and

4. That the plaintiffs have a full, adequate, and complete remedy at law in the above-mentioned condemnation proceeding.

The motion of the County of Milwaukee to vacate the order of possession entered in the condemnation proceeding aiid the motion of the defendants for dismissal of the complaint of injunctive relief were consolidated for purposes of argument.

Opinion of the Court.

I do not intend to file a formal opinion in the matter so I will dictate a few paragraphs which may stand in the nature of an opinion in the two matters before the court.

I think we have to first go back and consider some fundamentals that are involved in the right of the federal government to exercise the power of eminent domain.

We are all citizens of the United States of America, and all of the property that any of us have is held subject to the paramount right of the government to be condemned in good faith for a public use. There is no doubt that a military purpose is a public use. The fact that it may prove a hardship upon the owner of the property is no defense against the exercise of ‘the power of eminent domain by the United States Government.

The fact that the property sought to be condemned is owned by a city or a county or a State is no barrier to its condemnation by the United States Government, and when the constitutional powers of the United States Government come in conflict with those of the State, the latter must yield.

We have here before us two actions. In Civil Action No. 2229 the United States is the petitioner in the condemnation proceedings. In the second action, No. 2326, the State of Wisconsin and the County of Milwaukee are plaintiffs, and Henry L. Stimson, the Secretary of War, Mr. Cronin, the United States Attorney, Mr. Harrington, Special United States Attorney, and Colonel Krigbaum are the named defendants.

In the first action, No. 2229, the United States seeks the condemnation of 385 acres of land upon which is constructed the Milwaukee County House of Correction. In that action, the condemnation action, after notice and hearing, an order was entered by this court on May 7, 1945, granting the United States the right of possession of the premises at twelve o’clock noon on May 28, 1945. The defendant Milwaukee County has moved to vacate that order and has assigned five grounds for its requested relief.

Then, in the second action, No. 2326, an injunction is sought to restrain the defendants from exercising any rights under that order of May 7, 1945, or from taking possession of the House of Correction property, or from interfering in any way therewith. The complaint in substance sets out the same five grounds that were relied upon in the motion to vacate the order of May 7.

Congress has enacted a law entitled “Real Property for War Proposes,” Section 2 of which provides, in part, as far as applicable: “The Secretary of War * * * may cause proceedings to be instituted in any court * * * to acquire by condemnation, any real property, * * * that shall be deemed necessary, for military, naval, or other war purposes * * *. Upon or after the filing of the condemnation petition, immediate possession may be taken and the property may be occupied, used, and improved * * * notwithstanding any other law. * * * ”

Last year the Circuit Court of Appeals for the Fifth Circuit rendered an opinion in Dade County, Fla., v. United States, reported in 142 F.2d 230, 231. This was a condemnation under the Second War Powers Act. The court there said: “ * * * The court does not award the right of possession nor adjudge the title. The United States, acting through the Congress, and the agencies which Congress appoints, takes what is needed, recognizing the courts as the constitutional organ to fix the constitutional just compensatioh and ascertain its owners. Especially is this true under the Second War Powers Act. * * * The law gives the right of possession, apparently without the necessity of any court order, though it is orderly and decent to get one.”

The Ninth Circuit Court of Appeals last year decided the case of United States v. Merchants Transfer & Storage Co., reported in 144 F.2d 324, 327, and said: “ * * * The court had made no order prohibiting the United States from taking possession of the warehouse, nor did it possess power to make such an order. * * * It had merely declined, in the exercise of its discretion, to grant the government’s request for an order of immediate possession. * * * ” Judge Fee, who dissented in that case, made the following statement: “We are all agreed upon the propositions which follow: * * * second, the determination of the necessity of taking an interest in this particular property made by the Secretary of War under the judicial process proceeding as prescribed by Act of Congress, was a finality, and could not be properly questioned or opposed by the trial court; third, the order of the trial court insofar as it was based upon a denial of the right of the Secretary to determine whether it was necessary and advantageous to take this particular property * * * was erroneous and constituted an abuse of discretion and, if appealed from, must have been reversed; ífc

I am now addressing my remarks to the condemnation case. In United States v. 243.22 Acres of Land, reported in 129 F.2d 678, 683, the Second Circuit Court of Appeals was considering the allegation that the Secretary of War had acted in bad faith and had abused his power by asserting that the taking of the land was necessary for the defense of the country. The court in that case said: “ * * * The decision of the Secretary, of War is not open to judicial inquiry. That is fortunate, for if it were open, the ensuing delay would delight our country’s enemies.”

Then in addition to those three Circuit Courts of Appeals, there is the case of United States v. 72 Acres of Land, reported in D.C., 37 F.Supp. 297, and,- quoting a headnote (which probably I should not do, but it is the shortest statement), headnote 5 states: “A military purpose is a ‘public use’ for which land may be condemned and in such case the declaration of the Secretary of War in the form prescribed by Congress must be respected and the courts will not go behind the declaration to inquire into his intention.”

Judge Wham, in the case of United States v. Certain Interests in Land, decided this year and reported in D.C., 58 F.Supp. 739, 741, ¿aid: “* * * The Secretary of War has been given power to acquire by condemnation or otherwise real property * * * that shall be deemed necessary for military or other war purposes. * * * If there be any possible basis for deeming such acquisition to be necessary for such purposes no one can reasonably say that the courts should have power to question his action. The nation would be seriously hampered in its ability and capacity to conduct a successful war were it possible to subject such administrative determinations to judicial inquiry.” And, “The extent of the interest which the government may acquire is measured only by what is deemed necessary by the Secretary of War. That is- not a question for judicial determination. * * * ”

Therefore, it is -the opinion of this court today, as it was when the objections were filed, that this court does not have the power to make a judicial inquiry into the wisdom or the appropriateness of the determination of the Secretary of War in coming to the conclusion that the House of Correction was necessary for war or military purposes of the United States Government; and, therefore, the motion to vacate the order of May 7, 1945, will be denied..

I say again I do not believe that the court has -the right to make such a judicial review. The scope for the exercise of judgment and discretion by the Congress to meet the exigencies of war is a very wide one; and the Congress has passed this law, which I have heretofore quoted, stating that the Secretary of War may acquire by condemnation any real property that shall be deemed necessary. It is not for the courts, as I see it, to substitute their judgment as to the necessity of taking when such action has been determinéd on by -the authorities which Congress has designated or has given the power to take such action.

Now, as to Civil Action No. 2326, the government has entered a motion to dismiss. The question of jurisdiction can be met at any time during the course of the litigation. I myself think that probably the best way to have raised the question which is sought to be met in that suit was to have moved in the condemnation suit to -dismiss that action; but the question of jurisdiction has been raised, and the court of course will consider it at any time during the litigation, either when it is brought to its attention or sua sponte.

They ask for an injunction to restrain the defendants from acting under the order of May 7, which would not be of any avail at all unless there would be an injunction issued, because, under the authorities I have heretofore cited, there is .a very serious question whether the court need have issued the order of May 7 in any event. In other words, the authorities seem to indicate very strongly that the Secretary o-f War could proceed without such an order, although, as ■ the Ninth Circuit Court of Appeals stated, it was the orderly and decent thing to do to get one.

But I do not think that this court has the right to issue the injunction prayed for. In the first -place, I think the Secretary of War is an indispensable party to this action, and if any such suit could be brought at all, the only place would be in the District of Columbia. A quotation from a case decided by this court in 1941, Ernest v. Fleissner, 38 F.Supp. 326, 327, is applicable in my estimation, and I will read it: “Under the authorities it seems to be well settled that this court would have no power to compel the appearance of the Postmaster General or any other executive officer of the government unless there is some specific authority which would make such executive officer amenable to jurisdiction outside of the District of Columbia. * * * ” I think this holds true as to the Secretary of War. This court knows of no specific authority, none has been pointed out, whereby such process could be served upon him from this court.

I also think the government’s point is well taken when it urges that this action is in effect one against the United States without its consent, and that this court is without jurisdiction to consider same.

Therefore, the motion for a temporary-injunction in Action No. 2326 will be denied, which is in effect also granting the motion of the government to dismiss for lack of jurisdiction. If we did go into the merits of it, the same things I have said as to the condemnation case would apply, that is, that I think this court is without power to act in the matter.


author: JAMES ALGER FEE, District Judge.

text:
    In re BOOKSCHNIS.
    No. 21702.
    District Court, D. Oregon.
    May 17, 1945.
    No appearances.
   JAMES ALGER FEE, District Judge.

The petitioner filed for naturalization under the provisions of Section 310(b) of the Naturalization Act of 1940 on the 27th day of September, 1944, by virtue of the fact that he is married to an American citizen. The case was set for hearing in open court pursuant to the plan heretofore adopted whereby consideration is now given to each naturalization case upon its merits. It appeared upon the examination that the petitioner came to the United States in 1911, and that he is married to a citizen of the United States.

When it developed upon the examination that the petitioner had been convicted of a crime in this court, a continuance was granted for a time in order that the facts could be properly outlined. On the subsequent hearing, the record of the conviction was introduced. It was admitted by the .petitioner that he was the defendant in that case. The record shows that he was found guilty of a violation of the Interstate Commerce Act on forty-two counts. The charge of each of these counts was that upon a certain occasion, while defendant was operating vehicles in interstate commerce, he paid rebates to the consignee of shipments of gasoline delivered by him. On May 15, 1941, defendant was sentenced to pay a fine of $50 on each of the first fifteen counts, $10 on each of the next sixteen counts and $5 on each of the next eleven counts. The fines on the first five counts were required to be paid immediately. The defendant was placed on probation for one year as to the other counts. Thereafter, on January 9, 1942, petitioner filed a petition in this court asking for naturalization. On July 16, 1942, on his motion, the court denied the petition.

The petitioner has a satisfactory knowledge of government and his record is otherwise clear. He had the burden of affirmatively establishing good moral character in order to obtain citizenship. The examiner recommended admission upon the ground that the petitioner was only required to establish good character for a period of three years prior to filing the petition, that-being the period of required residence under this subjection of the Act, and that since conviction had taken place prior to that time, citizenship could not be denied simply because petitioner was on probation during a part of the three years.

On the question of whether a person affirmatively establishes good moral character within a period where it is shown that he was on probation following a conviction, the authorities are in apparent conflict. Under the statute, under which the petitioner was sentenced, the court could have imposed a sentence of imprisonment for the term of one year. The finding of guilty based upon the plea was a conviction under the federal law.

In re Rirignalda, D.C., 48 F.Supp. 975, holds that a petitioner for naturalization who within the three year period had been convicted of negligent homicide in the California State court, but placed on probation for one year without sentence during that period, was not prevented thereby from proving good moral character. This is based upon the fact that under the California law the whole proceedings-are swept aside and there is no conviction because there is no final judgment. In this case the cause had been dismissed and thereby no conviction stood. The conclusion in this case is not binding in the proceedings here. As has been noticed above: (1) Conviction of a federal crime is accomplished even though there is no-sentence imposed; and (2) in any event, where an act involving moral turpitude is committed within the statutory period, it would seem that the mere fact that no-judgment of conviction had been based thereon would not militate against a finding that proof of good moral character during the time had not been furnished.

This position is clearly pointed out in an illuminating opinion by Judge St. Sure, In re Paoli, D.C., 49 F.Supp. 128, 131. There the court refused to follow the opinion just above cited. Although the court held this position, the petitioner was admitted because of the fact that the violation in that case was not “a vicious one or one which necessarily involved moral turpitude ; it was purely a statutory crime.” Therefore, the court found that good moral character was established' and admitted the applicant. In re McNeil, D.C., 14 F.Supp. 394, was another case in which Judge St. Sure dealt with a similar question. There the petitioner was indicted in February, 1927, paroled in 1929, and pardoned unconditionally on January 26, 1932. The petition for naturalization was- filed January 27, 1935. The court held that the petitioner could not be admitted upon a petition filed within five years after the termination: of parole. The mere fact that the sentence had been imposed before the time wherein petitioner is required to prove good moral character would not avail if during that time he is under probation following conviction.

The thesis of the examiner is unsound in another particular. The statute places the burden upon the petitioner to prove residence in this country for three years, but still requires proof of good moral character for five years. Judge Goodman says, in dealing with a similar provision:

“Congress clearly did not intend that the circumstance of marriage by an alien to an American citizen spouse should relieve a petitioner from substantial requirements of ‘good behavior’ prescribed for all other aliens.” In re Laws, D.C., 59 F.Supp. 179, 180.

This brings us squarely to the proposition that if the conviction proved bad moral character, the petition must be denied. The violations are misdemeanors. The scope of regulation involving misdemeanors has covered practically every action of the individual within the years of war. Distinctions between acts involving moral turpitude and economic policy, and between acts recognized as criminal at all times and in all countries, and those which are simply violations of sumptuary, financial, or war regulations, should be maintained.

In this case, although there is necessity to maintain strict regulation of carrier lines, and although a curb of rebating should be rigidly maintained, there was no essential immorality involved in the actions of defendant. Since he possesses the other qualifications, the court directs that he be granted a certificate of admission after the administration of the oath in open court.

Petition is granted.

       Act of October 14, 1940, c. 876, Title I, Subchap. Ill, § 310(b), 54 Stat. 1144, 8 U.S.C.A. § 710(b)?

       United States v. Scheurer, D.C., 55 F.Supp. 243.

       In re Boric, D.C., 61 F.Supp. 133.

       8 U.S.C.A. § 710(b) (2).

       There has been some doubt about this in the past, but it is now settled by the case of Korematsu v. United States, 319 U.S. 432, 63 S.Ct. 1124, 87 L.Ed. 1497.

       A similar holding was made by this court, without opinion In re Nestor Nezeritis.


author: MULLINS, District Judge.

text:
    PENNSYLVANIA CASUALTY CO. v. THORNTON et al.
    No. 5603.
    District Court, N. D. Alabama, S. D.
    June 22, 1945.

      Joe S. Mead and Kingman Shelburne, both of Birmingham, Ala., for plaintiff.
    Fred G. Koenig, Sr., and Taylor, Higgins, Koenig & Windham, all of Birmingham, Ala., for defendants.
   MULLINS, District Judge.

This is an action for declaratory judgment. The matter is before the Court and was submitted upon two separate motions of the defendants, (1) to dismiss the complaint for failure to state a claim and (2) for summary judgment on that aspect of the complaint seeking a declaration to the effect that the plaintiff is not subject to suit until the defendants have first obtained judgment against its insured.

On December 20, 1943, there was a collision between a taxicab operated by Whitman’s Black & White Cab Company, Inc. (plaintiff’s insured) in which the defendant, Mrs. Julia Thornton, was a passenger for hire, and a vehicle operated by the Birmingham Electric Company. Mrs. Thornton sustained personal injuries for which she is making claim against both Whitman’s Black & White Cab Company, Inc., and directly against the plaintiff as insurer. The defendant, J. M. Thornton, Jr., is also making claim against the plaintiff and its said insured for the loss of services of his wife.

The matter was submitted upon oral arguments, briefs, and an oral stipulation of facts as follows:

“The defendants, prior to the filing of this action, had filed separate suits for damages in the Circuit Court of Jefferson County, Alabama, against the plaintiff, Pennsylvania Casualty Company, and its insured, Whitman’s Black & White Cab Company, Inc., in which suits Mrs. Thornton and Mr. Thornton claimed damages in the amount of $5,000 and $2500, respectively. These actions grew out of a collision between a taxicab of plaintiff’s insured in which Mrs. Thornton was riding and a vehicle operated by the Birmingham Electric Company, a corporation. Mrs. Thornton’s suit was for personal injuries and Mr. Thornton sued for the loss of services of his wife. On December 5, 1944, the defendants (plaintiffs in the State court) took nonsuits in these actions. Immediately thereafter, and on December 6, 1944, the plaintiff filed this declaratory judgment action, and in its complaint averred that the State actions had been nonsuited, but that the defendants were threatening to institute new suits against it prior to the rendition of any final judgment against its insured. Six days later, and on December 12, 1944, the defendants filed new separate suits in the Circuit Court of Jefferson County, Alabama. In'the new suits the plaintiff, Pennsylvania Casualty Company, its insured, Whitman’s Black & White Cab Company, Inc., and the Birmingham Electric Company were all made parties defendant. The insured, Whitman’s Black & White Cab Company, Inc., and the Birmingham Electric Company are both incorporated under the laws of the State of Alabama.”

From the complaint, it appears that both of the defendants are citizens of the State of Alabama and the plaintiff is a corporation organized under the laws of the State of Pennsylvania.

Pursuant to Ordinance 355-F of the City of Birmingham, Alabama, the plaintiff, a liability' insurance carrier, issued' a policy to Whitman’s Black & White Cab Company, Inc., covering the taxicab in which Mrs. Thornton was riding at the time she was injured. The pertinent provisions of this ordinance are attached as Exhibit A to the complaint. The ordinance provides that no license shall be granted to any person to operate taxicabs for hire on the streets of said city until such person shall have first filed with the City Clerk for each taxicab to be operated a liability and property damage insurance policy of a public liability insurance company. Said policy must be in the sum of $10,000 for personal injury liability and $1,000 for property damage liability, and provides for the payment of any final judgment not to exceed the sum of $5,000 for injury to one person, or $10,-000 for injury to two or more persons, and $1,000 property damage in any one accident, that may be rendered against the operator of such taxicab, for damage to person or property resulting from accident arising out of the careless or negligent operation of such taxicab. Said ordinance further provides :

“Said policy shall stipulate that any person who may sustain damage to his person or property, resulting from such careless or negligent operation of such vehicle, shall have his right of action on said policy as fully and to the same extent as if said policy was made and executed directly in favor of the claimant for such damages.”

The plaintiff seeks, in the main, a declaration to the effect that no suit can be maintained against it on its policy until the defendants have first obtained a final judgment, after actual trial, against its insured. Should the Court decide this question favorably to the plaintiff, no further relief is sought. However, should the Court rule that the plaintiff can be sued directly or jointly with its insured, then, in the alternative, the plaintiff prays that the defendants be required to propound their claims in this court in order that the question of negligence vel non of the insured or its agents may be determined along with the plaintiff’s liability not to exceed the amount of its policy.

The first, and main, issue presented here falls without the province of a declaratory judgment proceeding. Whether the plaintiff can be sued directly, or jointly with its insured, is a matter of remedy and not of right. 1 C.J.S., Actions, § 18, p. 1045; 15 C.J.S., Conflict of Laws, § 22, p. 948 ; 47 C.J. pp. 17, 18; Byrd v. Ætna Life Ins. Co., 25 Ala.App. 318, 146 So. 78; Dollahite-Levy Co. v. Overton, 223 Ala. 12, 133 So. 903. In the last case cited, the Supreme Court of Alabama held that a determination of who were proper parties defendant was a matter of procedure and remedy.

The function of the declaratory judgment is to deal with “rights, not remedies.” 28 U.S.C.A. § 400; Pennsylvania Casualty Co. v. Upchurch et al., 5 Cir., 139 F.2d 892, 893. In dealing with the precise issue here involved, the Court, in the Upchurch case, made the following decisive statement:

“It is immaterial whether an injured third party may sue the insurer directly or must first obtain judgment against the insured. This is a remedial matter. Cf. Wells v. American Employers’ Ins. Co., 5 Cir., 132 F.2d 316. We are required here to declare rights, not remedies.”

To the same effect, see the case of Bagwell v. Woodward Iron Co., 236 Ala. 668, 184 So. 692, 693, wherein the Court said:

“The present proceeding is nothing more nor less than an effort on the part of appellant to have this Court to advise him as to what remedy he should pursue for redress of the wrong complained of in his petition. It is not the province of a declaratory judgment to advise parties as to proper remedies to be pursued.”

Moreover, there are further grounds for declining a determination of this question here. As is shown by the facts stipulated, the defendants now have actions pending in the State court against the plaintiff, its insured, and the Birmingham Electric Company. All parties in anywise responsible for the collision or otherwise interested in it can obtain a full determination of their rights in those actions. It is not within the sphere of a declaratory judgment proceeding to deal with litigation by piecemeal. Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, etc., et al., 5 Cir., 137 F.2d 176, 179; Ætna Casualty & Surety Co. v. Quarles et al., 4 Cir., 92 F.2d 321; American Automobile Ins. Co. v. Freundt et al., 7 Cir., 103 F.2d 613.

In addition, to deal with this single issue here would constitute a “gratuitous interference with the orderly and comprehensive disposition of a state court litigation,” and would subject the defendants to an “uneconomical as well as vexatious” burden. Brillhart v. Excess Ins. Co., 316 U. S. 491, 495, 62 S.Ct. 1173, 1176, 86 L.Ed. 1620. Manifestly it would be unjust to require the defendants to litigate this remedial issue as against the plaintiff in this court at a time when they have cases pending in the State court against the two alleged tort feasors as well as the plaintiff in which this question can be properly decided.

It is true that the State actions now pending were filed a few days subsequent to the filing of this proceeding. This is not controlling. In the case of Ætna Casualty & Surety Co. v. Quarles, supra, the Court held that the issue presented could be determined with equal facility in another pending suit, although it was filed subsequent to the bringing of the declaratory judgment proceeding. This case has been cited with approval by the Circuit Court of Appeals for the Fifth Circuit and the Supreme Court of the United States. See Columbia Casualty Co. v. Thomas et al., 5 Cir., 101 F.2d 151; Brillhart v. Excess Ins. Co., supra.

Since it is clear from the pleadings that the plaintiff does not deny liability in the event that its insured is guilty of actionable negligence, the alternative issue presented here, as to whether the insured or its agents were guilty of such negligence as would impose liability upon the plaintiff, does not raise a justiciable controversy. The controversy is between the defendants and the insured, all of whom are citizens of the State of Alabama. Although the facts are different, the principle laid down in the case of Liberty Mut. Ins. Co. v. Lee, 5 Cir., 117 F.2d 735, 736, applies here. There the Court ruled:

“Their controversy is one between citizens of the same State and triable in the State court. The insurer, because of his contract with the truck owner, has an interest in the outcome of the controversy, but he cannot take charge of it as his own and carry it into a federal court because of his citizenship being diverse.”

The pending State court actions cannot be removed to this court because of lack of diversity of citizenship, the plaintiffs (defendants here) and two of the defendants there being citizens of Alabama. To use the declaratory judgment for the purpose of dragging into the Federal court the trial of non-removable local litigation has been repeatedly condemned. Indemnity Ins. Co. of North America v. Schriefer et al., 4 Cir., 142 F.2d 851. See also Maryland Casualty Co. v. Boyle Const. Co., 4 Cir., 123 F.2d 558; Piedmont Fire Ins. Co. v. Aaron, 4 Cir., 138 F.2d 732; Carbide & Carbon C. Corp. v. United States I. Chemicals, 4 Cir., 140 F.2d 47.

Furthermore, in its alternative claim, the plaintiff avers that if it is directly liable to the defendants “that its liability exists only in the event its said insured is legally liable to the defendants.” The legal liability of the insured to the defendants could not be determined here without the insured being made a party. If the insured were made a party, it would necessarily have to be aligned with the plaintiff, and as it is an. Alabama corporation, the requisite diversity of citizenship would not exist and this Court would be without jurisdiction. Steele v. Culver, 211 U.S. 26, 29 S.Ct. 9, 53 L.Ed. 74.

Finally, this Court cannot determine all of the issues that are involved in the State court actions, adjudicate the rights of all interested parties, and finally determine the controversy. The State court can dispose of the entire matter. This being true, this is a proper case for the Court to exercise its discretion not to entertain the action. Ætna Casualty & Surety Co. v. Quarles, supra; Columbia Casualty Co. v. Thomas, supra; American Automobile Ins. Co. v. Freundt, supra; Brillhart v. Excess Ins. Co., supra.

Since the Court has ruled that this is a proper case for declining to exercise its jurisdiction, it is unnecessary to consider the defendants’ motion for a summary judgment.

It is, therefore, ordered, adjudged and decreed that this action be and the same is hereby dismissed without prejudice, and all costs are taxed against the plaintiff, for the collection of which execution may issue.