A-7149, FEBRUARY 3, 1925, 4 COMP. GEN. 647

A-7149: Feb 3, 1925

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WHEN SO ASSESSED ARE PAYABLE FROM THE SAME APPROPRIATION AS THE PORTION OF THE AWARD COVERING THE VALUE OF THE LAND. THE PAYMENT OF INTEREST ON A JUDGMENT AGAINST THE UNITED STATES IS NOT AUTHORIZED WHEN THERE IS AN AVAILABLE APPROPRIATION FOR THE PAYMENT OF SUCH JUDGMENTS WHEN RENDERED. 1925: I HAVE YOUR LETTER OF DECEMBER 22. PROCEEDINGS WERE INSTITUTED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA TO CONDEMN. WHICH LAND WAS REQUIRED BY THE GOVERNMENT FOR THE CONSTRUCTION AND OPERATION OF THE LE CLAIRE CANAL. COMMISSIONERS WERE APPOINTED TO ASSESS THE DAMAGES THAT THE OWNERS OF THE LAND WOULD SUSTAIN BY REASON OF THE TAKING OF THE SAME BY THE UNITED STATES. THE ISSUES INVOLVED WERE TRIED BY A JURY.

A-7149, FEBRUARY 3, 1925, 4 COMP. GEN. 647

APPROPRIATIONS - CONDEMNATION PROCEEDINGS - COURT COSTS - INTEREST COSTS COVERING ATTORNEYS' FEES AND WITNESSES' FEES INCURRED BY A DEFENDANT IN PERFECTING AN APPEAL IN CONDEMNATION INSTITUTED BY THE UNITED STATES IN THE STATE OF IOWA MAY BE ASSESSED BY THE COURT AS A PART OF THE AWARD, AND WHEN SO ASSESSED ARE PAYABLE FROM THE SAME APPROPRIATION AS THE PORTION OF THE AWARD COVERING THE VALUE OF THE LAND. THE PAYMENT OF INTEREST ON A JUDGMENT AGAINST THE UNITED STATES IS NOT AUTHORIZED WHEN THERE IS AN AVAILABLE APPROPRIATION FOR THE PAYMENT OF SUCH JUDGMENTS WHEN RENDERED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, FEBRUARY 3, 1925:

I HAVE YOUR LETTER OF DECEMBER 22, 1924 (FILE 6502 (LE CLAIRE RAPIDS CANAL LOCKS) 1), AS FOLLOWS:

ON SEPTEMBER 3, 1919, PROCEEDINGS WERE INSTITUTED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA TO CONDEMN, AMONG OTHERS, A PARCEL OF 2.01 ACRES OF LAND BELONGING TO ONE JAMES P. PEARSON, WHICH LAND WAS REQUIRED BY THE GOVERNMENT FOR THE CONSTRUCTION AND OPERATION OF THE LE CLAIRE CANAL, A PART OF THE IMPROVEMENT OF THE MISSISSIPPI RIVER.

FOLLOWING THE STATE PRACTICE CONDEMNATION CAUSES, COMMISSIONERS WERE APPOINTED TO ASSESS THE DAMAGES THAT THE OWNERS OF THE LAND WOULD SUSTAIN BY REASON OF THE TAKING OF THE SAME BY THE UNITED STATES, AND AND THESE COMMISSIONERS MADE A WRITTEN REPORT TO THE COURT, FINDING THAT THE SAID PEARSON WOULD SUSTAIN A DAMAGE OF $1,500. FROM THIS REPORT PEARSON PERFECTED ON APPEAL, AND THE ISSUES INVOLVED WERE TRIED BY A JURY, WHICH, BY A VERDICT RENDERED OCTOBER 8, 1920, FIXED THE COMPENSATION DUE HIM FOR THE 2.01 ACRES OF LAND AT $1,900. ON JUNE 2, 1921, THE COURT ENTERED A DECREE OF CONDEMNATION WHICH PROVIDED THAT UPON DEPOSIT BY THE UNITED STATES INTO THE REGISTRY OF THE COURT OF THE SUM OF $1,900, THE AMOUNT AWARDED BY THE JURY, THE SAID PEARSON SHALL BE DIVESTED OF ALL RIGHT, TITLE, AND INTEREST IN AND TO THE LAND EMBRACED IN THE SUIT, AND THAT THE FEE SIMPLE TO THE SAME SHALL THEREUPON VEST IN THE UNITED STATES FREE AND CLEAR OF ALL ENCUMBRANCES.

IN ACCORDANCE WITH THIS DECREE OF UNITED STATES, ON JULY 13, 1921, PAID INTO THE REGISTRY OF THE COURT THE SUM OF $1,900 AND TOOK POSSESSION OF THE PARCEL OF LAND. THERE IS A PROVISION AT THE END OF THE DECREE THAT THE SAME "IS WITHOUT PREJUDICE TO THE QUESTION OF COSTS AND ATTORNEY'S FEES.' IT SEEMS THAT THIS PROVISION WAS ADDED FOR THE REASON THAT COUNSEL FOR THE GOVERNMENT, UNDER INSTRUCTIONS FROM THE DEPARTMENT OF JUSTICE, HAD OBJECTED TO AN ORDER ENTERED BY THE COURT TAXING DEFENDANT'S COSTS AND ATTORNEY'S FEES AGAINST THE UNITED STATES, AND HAD MOVED FOR A REHEARING ON THIS QUESTION. THE DECREE AS PLACED PERMITTED THE GOVERNMENT TO SECURE POSSESSION OF THE PROPERTY, LEAVING THE QUESTION OF THE DEFENDANT'S RIGHT TO COSTS AND ATTORNEY'S FEES FOR FURTHER CONSIDERATION.

IT APPEARS THAT THE GOVERNMENT'S CONTENTION REGARDING THE TAXING OF DEFENDANT'S COSTS AND ATTORNEY'S FEES AGAINST THE UNITED STATES WAS OVERRULED, AND ON OCTOBER 6, 1921, THE COURT RENDERED JUDGMENT IN FAVOR OF JAMES P. PEARSON AND AGAINST THE UNITED STATES FOR THE SUM OF $275 ATTORNEY'S FEES, AND FOR THE FURTHER SUM OF $9.40 COVERING WITNESS FEES AND MILEAGE. THIS JUDGMENT WAS BROUGHT TO THE ATTENTION OF THIS DEPARTMENT BY THE DEPARTMENT OF JUSTICE, BUT NO ACTION LOOKING TO ITS PAYMENT WAS TAKEN. IT WAS NOT CLEAR THAT THE JUDGMENT WAS PAYABLE FROM WAR DEPARTMENT APPROPRIATIONS, AND BESIDES, THE TAXING OF DEFENDANT'S COUNSEL FEES AGAINST THE UNITED STATES AS A PART OF THE COSTS OF THE SUIT SEEMED A JUDICIAL ERROR. THAT THE GOVERNMENT SHOULD BE REQUIRED TO PAY THE FEES OF COUNSEL EMPLOYED BY A PRIVATE PARTY TO PROSECUTE AN APPEAL AGAINST IT IN A CONDEMNATION SUIT APPEARED TO BE AN UNUSUAL PROPOSITION AND, SO FAR AS KNOWN, WITHOUT PRECEDENT.

I AM NOW IN RECEIPT OF A PETITION FROM THE ATTORNEYS FOR PEARSON ASKING THAT THIS JUDGMENT BE PAID. I TRANSMIT THE PETITION, TOGETHER WITH PERTINENT PAPERS, TO YOU, AND SHALL BE PLEASED IF YOU WILL ADVISE ME WHETHER THE JUDGMENT IS A PROPER CHARGE AGAINST THE APPROPRIATION FOR THE WORK FOR WHCH THE LAND CONDEMNED WAS NEEDED; AND IF SO, WHETHER I AM AUTHORIZED TO PAY IT OR SETTLEMENT WILL BE MADE IN THE GENERAL ACCOUNTING OFFICE.

THE ACT OF APRIL 24, 1888, 25 STAT. 94, AUTHORIZED THE SECRETARY OF WAR TO ACQUIRE LAND BY CONDEMNATION PROCEEDINGS FOR RIVER AND HARBOR PROJECTS,"SUCH PROCEEDINGS TO BE PROSECUTED IN ACCORDANCE WITH THE LAWS RELATING TO SUITS FOR THE CONDEMNATION OF PROPERTY OF THE STATES WHEREIN THE PROCEEDINGS MAY BE INSTITUTED.' IT APPEARS FROM THE RECORD THAT PURSUANT TO THE AUTHORITY OF THE ABOVE CITED ACT, CONDEMNATION PROCEEDINGS WERE INSTITUTED UNDER THE LAWS OF THE STATE OF IOWA AGAINST VARIOUS OWNERS OF PARCELS OF LAND INVOLVED IN THIS PROJECT AND THAT, IN THE CASE OF THE TRACT INVOLVED IN THE PRESENT CLAIM FOR COSTS, ON JUNE 2, 1921, THE COURT RENDERED JUDGMENT FOR $1,900 IN FAVOR OF THE OWNER, THE DECREE CONTAINING, HOWEVER, THE FOLLOWING: "THIS DECREE IS WITHOUT PREJUDICE TO THE QUESTION OF COSTS AND ATTORNEY'S FEES IN THIS CAUSE.' THE $1,900 WAS DULY DEPOSITED IN THE REGISTRY OF THE COURT JULY 13, 1921.

ON OCTOBER 6, 1921, A SUPPLEMENTAL DECREE WAS ISSUED BY THE COURT ASSESSING AGAINST THE UNITED STATES AND IN FAVOR OF JAMES P. PEARSON, ADDITIONAL SUMS OF $275, ATTORNEY'S FEES, AND $9.40, FEES AND MILEAGE TO CERTAIN WITNESSES. THE ASSESSMENT OF THE COSTS OF THE APPEAL BY THE DEFENDANT APPEARS TO HAVE BEEN MADE PURSUANT TO SECTION 2007, CHAPTER 4, TITLE 10, OF THE STATUTES OF IOWA, WHICH IS AS FOLLOWS:

COSTS: THE CORPORATION SHALL PAY ALL THE COSTS OF THE ASSESSMENTS MADE BY THE COMMISSIONERS AND THOSE OCCASIONED BY THE APPEAL, INCLUDING REASONABLE ATTORNEY FEES TO BE TAXED BY THE COURT, UNLESS ON THE TRIAL THEREOF THE SAME OR A LESS AMOUNT OF DAMAGE IS AWARDED THAN WAS ALLOWED BY THE COMMISSIONERS.

WHILE THE CHAPTER OF WHICH THE ABOVE SECTION FORMS A PART RELATES PRINCIPALLY TO CONDEMNATION PROCEEDINGS BY RAILROADS AND LIKE CORPORATIONS, ITS PROVISIONS ARE MADE APPLICABLE TO CONDEMNATION PROCEEDINGS BY THE UNITED STATES BY SECTION 2024-C AS FOLLOWS:

UNITED STATES MAY PURCHASE OR CONDEMN. THAT WHERE THE UNITED STATES OF AMERICA HAS UNDERTAKEN OR MAY HEREAFTER UNDERTAKE TO IMPROVE ANY RIVER, STREAM, OR WATER COURSE, FORMING A PART OF THE BOUNDARY LINE OF THIS STATE, OR WITHIN THE STATE, OR TO UTILIZE ANY RIVER, STREAM, OR WATER COURSE, FOR ANY PURPOSE, DEEMED ADVISABLE, THE SAID UNITED STATES MAY PURCHASE OR CONDEMN LAND AND PRIVATE PROPERTY IN ACCORDANCE WITH THE PROVISIONS OF CHAPTER 4, TITLE 10, OF THE CODE, FOR TAKING PRIVATE PROPERTY.

THE AWARD BY THE COMMISSIONERS IN THIS CASE WAS $1,500, OR $400 LESS THAN THE AMOUNT ALLOWED BY THE COURT ON APPEAL. THE ATTORNEY'S FEES AND COSTS OF THE APPEAL APPEAR TO BE PAYABLE UNDER THE CITED SECTIONS OF THE IOWA LAWS, WHICH LAWS ARE REQUIRED TO BE FOLLOWED IN CONDEMNATION PROCEEDINGS FOR RIVER AND HARBOR PROJECTS IN THAT STATE BY THE ACT OF APRIL 24, 1888, SUPRA. SEE UNITED STATES V. ENGENEAN ET AL. 46 FED.REP. 898. THE COSTS SO DECREED ARE PAYABLE TO THE OWNER OF THE LAND AND CONSTITUTE A PART OF THE TOTAL COMPENSATION OR COST TO THE UNITED STATES OF ACQUIRING THE TRACT IN QUESTION, AND ARE ACCORDINGLY PAYABLE FROM THE SAME APPROPRIATION AS THE AMOUNT REPRESENTING THE VALUE OF THE LAND ALLOWED IN THE ORIGINAL DECREE.

THE PETITION OF CLAIMANT FOR THE PAYMENT OF THE COSTS AWARDED BY THE COURT ALSO PRAYS FOR THE PAYMENT OF INTEREST THEREON AT 4 PERCENT "AS PROVIDED BY LAW.' HE FAILS, HOWEVER, TO CITE THE LAW RELIED UPON AS PROVIDING FOR THE PAYMENT OF INTEREST, AND THERE APPEARS TO BE NO FEDERAL STATUTE AUTHORIZING THE PAYMENT OF INTEREST IN SUCH CASES WHERE THERE IS AN AVAILABLE APPROPRIATION FROM WHICH THE AMOUNT OF THE JUDGMENT WAS PAYABLE. IN THE PRESENT CASE, THE ASSESSED COSTS ARE PAYABLE FROM THE SAME APPROPRIATION AS THAT AVAILABLE FOR THE NET AWARD FOR THE LAND, RIVER AND HARBOR APPROPRIATIONS BEING WITHOUT FISCAL YEAR LIMITATION--- SEE ACT OF MARCH 3, 1919, 40 STAT. 1309. PAYMENT FOR THE LAND WAS MADE BEFORE THE SUPPLEMENTAL DECREE FOR COSTS ISSUED AND ANY DELAY IN THE PAYMENT OF THE COSTS WAS NOT DUE TO LACK OF AN APPROPRIATION BUT FAILURE OF THE CLAIMANT TO PRESENT THE CLAIM TO THE PROPER OFFICE FOR PAYMENT.

PAYMENT OF THE COSTS AGGREGATING $284.40, WITHOUT INTEREST, MAY ACCORDINGLY BE MADE THROUGH A DISBURSING OFFICER OF THE WAR DEPARTMENT FROM THE SAME APPROPRIATION AND IN THE SAME MANNER AS PAYMENT FOR THE LAND.