# Petition for Writ of Certiorari — American Oil Co. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA04386419_0828%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1959 - **Citation:** 359 U.S. 991 ## Text bd @” iffice-Supreme Leurt, U5 | * , . P \ ‘ a a ‘ -] . 2 f* i¢ ‘ ‘ tai APR ‘) 7 4 . . ’ . ‘ . ® ° , . . e | SRE ee oe Se Ger JAMES R. BAW) Nis Clerk bee | Wes a IN THE en _Bigreme Court of the United. States Term, 158° ~—«B1T (OMEANY, Oe TOBER THe AMERICAN, On, Pitdiouer, 5 gs “i t Nibep Sr ares or Aarekie 4 Joun J -Suaca. Judge of the triet Court for the THE and ‘The Hoxornnr United States | )j~- Dix triet of Colmibiay [ie x pore whs, ‘ PETITION FOR A WRIT OF CERTIORARI TO THE | UNITED STATES COURT OF APPEALS FOR | ‘ DISTRICT OF COLUMBIA CIRGQUIT on - Ya S. Parrensas Wiitanent 2 D. Muartuens Jn. Kh Vy MONDMG. TD, ABKOCY of Kiki sp, Ennis, Hopsox, ’ “ & Masters SOO Work Center? Building Washington 6. 2. ©, | ® (CHAREE YZ } Alone ys fo Peti Neus K X Ropyey M. Saat Md Mes K. Eas, dr, 059 Fitth Aventie: New Vork, New “Of Connsel, . ork eo, ae ° : A a ; — = ; - Priss oF Byron S. ADAMI Wasutncion, DC Opinions Below Jurisdiction ........:....0.eee fee , eDkeLgEh Questions Prese = Pertinent Statutory Provisions “Statement of Facts ...... eV ukk sein ddeeecenhheakis 3... ~~ Reasons Why the Writ Shoatd be Granted .......... 7 ° A. The Tables to the-U.S. Code Cannot Supersede Che Tbnteten. Gt TARGA occ nccccccccccccccscces 7 B. The Interlocutory Appeals Act of 1958 Neither — Amends Nor Repeals t the All Writs Statute . ee... a Conclusion PR rr re ee a ete tS 12 Appendix cade haet pes eehadtensecsnnancsesbhesecec Ta oS EET PMD E TL Oe ee cha. “9a ; CITATIONS. . wid Cases : Carroll. v. toned henies,' 354 U.S. we ind, —er . 12 Hassett v. Welch, 303 U.S. 303 (1938) ........... i) In re Héath, 144 U.S. RE a _. Kendall vy. United States, 37 U.S. (12 Pet.) 524 of . CHE hc puchackinneddscasetabasesse ever rere 9. Potler v. Gardner, 222 Ky. 487 (1927) ............. 10 Stephan v. United States; 319 U.S. 423 (1943) ...... 8 Umted States ex rel. Kessler v. Mercur Corp., 83 F. . ee ee I I nn ovcnGecneunasadberaccess 9 pee v. Rainwater, 244 F. 2d 27 (Sth. Cir. United States v. ‘iikited States District Court, 206 F. alana 1953) ..... errr rrr tre 11 . STATUTES : | : ‘ | Act $f August 30, Stat. 62.2 DERTAS Act tt March‘1, 90 28 Stat $§ 619-644, D.C.:Code (1951 ed.) bigness eens seen eens ede eeeeees 2, 3, 4,5 i os . Index Continued. ee; eae ae Rec had : Nie Page” ea i > Aet “of duly 30, 4947, 61 Stat. 633, as amended Rs : , USC, § 112, (1952) , LESS OES GEIR Pe a a, 8 by the said act of — 30), 1890, in the — thereby ereated.”’ ,; The United States, while wading the authority © _ Of the Commission to acquire land on the foregoing statute nevertheless alleged that the.district’ court had jurisdiction under the general condemnation statute applicable in ‘the District of Columbia, Title 16, §§ 619-644 of the. D. C. Code: (1951 ed.) The United . States did not invoke the Act of August 30, 1890, 26 — > Stat. 412, undoubtedly because that. statute does hot ‘authorize a declaration of taking. ao | Ai In its answer to the coinpl int petitioner challenged , the jurisdiction of the distri# court. ta’ entertain the ~ + eomplaipt-and the declaratién ef taking on the ground _ tha® the proceeding was not:in accordance with ‘the - —~ Aet.of August 30, 1890, as specifically required by 40’. U.S.C. § 72. ((R. 15). The- ‘United States filed an alternative motioii for summary judgmeng or to strike from petitioner’s answer the challenge to the jurisdic- tion of the district court (R..21). The court granted the United States a summary gudgment on the issue P of the right to conderin.and issted an opinion, hold- * ing that .the United States had properly proceeded | under a general condemnation statute énaeted i in 1929, %\ ~% £ ? - id =. ¢ Tithe 16, 88 619- 644.0f the p. C.¢ ‘ode (1951 le ) (App. : p. 2a). The prigcipal | basis. of the court’s ruling ‘was | ‘that the ‘‘tables’” appended to the U. 8. Code listed © the Act of. August 30, 1890, along, with hundreds of | : other statiites, as ‘eliminated because obsolete, exe- . cuted, superseded, ete.”’, and, consequently, the Act of . August 30, 1890, was of-no effect: even though still | incorporated. into 40 U.S.C. § 72. The court further ordered petitioner to surrender possession of the serv- ‘ jee station td ‘the United States on pions 9, 1959. ; (R. 64). The Gistrict wees “did not foes siguific ‘arit the fact _, that Congress in 192 re-enacted the very statiite-codi- fied in 40 U.S.C, § Thus by the National € apital Planning Act of aise Act of July 17, 1952, 66 Stat. | 781, Congress. substantially rewrote the Planning Aet © -of 1924, “Act of June: 6, 1924, ¢.' 270 §.1, et seq., 43 Stat. 463, which created the Commission.’ Congress in the: 1952 amendment. not only failed affirmatively ° _ to delete any reference to the Act of August 30, 18907 . -but reaffirmed. 40°-U.S.C. -§ 72 .by. renumbering see- tion 2 of the 1924 Planning. Act, 43 Stat. 463 upon which section 40 U. S. C. § 724 is based. 66 Stat 791. _ When the condemnation was filed, the Commission - ~ announced that upon taking possession of the real estate; it would immediately demolish the service sta- tion, located ‘thereon. Tte service station, which has * been.operated at this location since 1920, is a non- conforming use and jt would be legally impossible for : petitioner to restore the station once it had. been_ demolished, _ sinee such restoration would contravene we zoning laws and regulations of the District of ‘ Glumbia. See §§ 1302.1, 2101.11, 3101.2, 7108 and § 7 of ‘the Zoning Map, Zohing Regulations of the District, of i Columbia. | | aia : eee ‘ : ) ’ oy _ .appeal after the aac ‘made; it: would/be a + as victory would | be forever lost. a *, - % E ‘ . } | | ~ we. >: : a ee : challengé,to the juris 1 of the distri¢t -court on ndemnation — had been irice the station . : -Goitscquettts, even Pe era succegsful in its’ a _ This classic. case of irreparable injury is further , highlighted by the fact tha the service ‘station 4s lo- eated at.a unique anid valuable position on. tivo of the ~ main arterial highways in the. District of Columbia,. Massachusetts Avenue and Wisconsin Avenue, N. Ww. (B53). Petitioner moved the ‘district court. for a eertific ‘fe of “appealability under the Interlocutory Appeals Act of September 2, 1958, 72 Stat. 1770, 28'U.S.C.A..§°1292 (b) (Supp. 1958). This motion was denied. (R. 65). Petitoner immediately filed 4 petition for an extra- | ordinary writ in the court below requesting that’a writ be issned pursuant to the All Wists Statute, 28 U.S.C. § 1651, prohibiting the: district eourt from improperly P "exercising jurisdiction in ‘the catise. (R. 66-75.). The United States opposed the issuance of such a writ pri: marily on the ground that the Interloeutory Appeals - wy 8 ‘ 5 , Act of 1958 deprived the court of appeals ofits jurig, 5 a diction to issue an ext rdinary wrt under 28 U:S. C. § 1651 w ‘here the district eourt had failed and refused . to issue a certifica€ of : ‘appealability as provided for - the Interloeiutory ppeals | Act. - -(R. °107). : The “eourt of appeals in a per curiam decision denied peti- tioner’s application for an extraordinary: writ but — extended the’ time durjng whj petitioner eould re- tnain in possession: until Mar« , 1959. - (App. p. Ja). Petitioner filed. ah lngplteation to ‘stay the U nited Dé States from taking pgssession, of the — im que { . igi . i - tion with this Court, which stay was granted on May 7, 1959. ‘The order of this Court provided, inter alia, that the United States shonlt not take posstaslon: of the real property until the final disposition of peti- ~>. “ tioner’s petition for’ certiorari which was required t to be filed gp 'o ‘or btn ey | Fs a THE WRIT SHOULD BE GRANTED ThE decision. of the district court, affirmed by the — — coutt below, establishes‘a startling principle of wide- — _ spread application, . This. precedent, one which per- meates the. entire. judic ‘ial. speetrum, is thaf the “tables”? tp the U.S.Code not only have official status . but as hete, effectively repeal laws contained inf the rhe -« Statutes at Largeqye en where such laws have been in-. © ¢orporated i in another statute by reference. Of equal. importance is the impact the aetipn of the court below will‘have on federal appellate procedard © ,under t Interipeutory Appeals Act of 1958. oA ¢ Tables -the U. S. Code Cannot Supersede the » Statutes at Large F 2 “The right of a federal ageney ‘to Pe land isa “right.which rests solely on statutory authority. ‘Where the statutory” authority to corfdemn ‘expressly directs — that condemnation proceedings ‘he siar’ accordance - Ay ith?” a specific statute, it follows inexorably.that that | “statute alone governs the condemnation proceedings. . Thus, 40 U.S.C. §72 declares that the Natiorial : Capital Planning Commission: "i ~ “S. o ns is: ‘authorized to" acquire such lands ‘ by a : condemnation , proceedings, such proceedings ie . _ > aequire lands. . 0. be in. accordance with the prov isions of act August 30, 1890, ch, 837, 26 Stat. “N op. °. oR ee 412, the Chief of Engineers of the Army being, for — the purposes of sections 71, 72, 73 and 74 of this title, clothed with all the power vested by the said act of August 30, 1890, in the Board created.”’ ' The corpplaint i in. condemnation aia not premise the jurisdiction af the district court on the act of August: 30, 1890, but upon a condemnation statute which au- thorized the filing. af a declaration taking. The dis- triet court when its jurisdiction Was challenged ad- _ mitted’that condemnation proceedings instituted at the - request of the Commission might be required to follow the Act of August 30, 1890 if that Act ‘were operative today’’ (App. pp. 5a-6a). However, ruled the court, compliance with that ‘statute was unnecessary because _the ‘‘tables”’ of the U. 8S. Code revealed that the act of August 30, 1890 ‘‘has been eliminated from the Code as being obsolete, executed and. superseded’. The court of appeals affirmed. In so ruling not only was the express direction of Congress ignored but also earlier rulings of this Court and the courts of apes for the 2nd“ind 8th cireuits were contravened. The ruling below places the ‘‘tables” to the U. §. Code ina position. superior to the Statutes at Large. Such, a startling concept not only upsets established precedents but is directly contra to 1 U.S.C. § 112 (1952) making United States Statutes at Large ‘legal evidence” of the law. Not even the body of the U. 8. _ Code which is only prima facie evfdence of the law can prevail over the Statutes at Large. -1 U.S.C. § 204(a) . £(1952); Stephany. United ‘States, 319 6. 8. 423 (1943). The ruling below gives anustens effect not only to o «the body of the Code itself ‘but also to the tables or ancillaries to the Code. The Committee of the Judi- See. ica ciary of the House of Representatives prescribes the ancillaries to be included in the Code but the Librarian of Congress is directed to cooperate with the Wom- mittee in’ the “preparation of such anciflaries”, ‘1 U.S.C, § 205 (1952). Thie content of such ancillaries, not. being a legislative ‘act, could not possibly effect a repeal of statutes entbodied in the Statutes at Large. The,novel and binding effect to be given the ‘‘tables”’ of the U. S. Code under the precedent established, de- _ parts so radically from aecepted and established judi- cial interpretation that this Court should examine this startling new concept before it gains wide-spread ac- ceptance. a ; ‘ 4 of equal seriousness is that fact that even assvming the §ncorporated statute, the Act of August 30,-1890, had been repealed, it still would be operative as an in- tegral part of the incorporating statute. This Court -, has ruled that where a statute -incorporates another, amendment or repeal of the incorporated statute af- fects not at all the incorporating statdte. Kendall v. United States, 37 U. S. (12 Pet.) 524, 625 (1838); In re Heath, 144 U. S. 92, 93-94 (1892), Also so hold- ‘ ing are United States v. Rainwater, 244 F. 2d 27, 29 (8th Cir. 1957) and United States ex rel. Kessler v. Mercur Corp., 83 F. 2d 178, 180 (2d Cir-1938).. Here, 40 U.S.C. § 72 incorporates the Act of August’ 30, 1890, %. 837, 26 Stat. 412. The ‘‘effect is the same as though the [Act of August 30, 1890] had been in- _ f/vrporated bodily into [40 OS.C. § 72).”’ Hassett v. Welch, 303 U. S. 303, 31471938). ' Even asuming a subsequent repeal of the Act of. August 30, 1890, 40 U.S.C. § 72 would-be unaffected. This is the rule of _ Kendal and the other cases, supra. The ruling below /* ; a 10 ae of nr being squarely contra to this well settled principle’ a- review by this Court is necessary to resolve this cOn- flict. B. The Sntastbentent Appeals Act of 1958 Neither Amends: Nor ' Repeals the All Writs Statute The. Interloeutory Appeals Act became law Septem- ber 2, 1958., That Act permitted appeals from inter- locutory orders of “federal district courts formerly not appealable, and was designeal. to obtain appellate : review of issues dispositive of the case prior to a long and ftifme consuming trial, and thus, as Congress in- tended, to expedite the ultimate termination of litiga- tion.. A condition precedent to-appeal of: the inter- Joeutory order is the issuance by the ei anes a certificate of. appealability. Petitioner moved the district court to issue such a - certificate, which motion was denied. Petitigner then filed a petition for an extraordinary writ- under 28 _ U.S.C. § 1651 in the court below. The United States immediately challenged the pen diction of the court of appeals to issue a writ wnder 28 U.S.C. § 1651 declaring, er alia, that to ‘‘permit the use of the ‘All Writs’ statute in a ease which, ex- cept for the lack of certificate, would be appealable under the [InterJocutory Appeals Act] would be to ‘countenance an evasion of the Congressional limita-.. tions on ‘such ‘appeals.’” The court -below by a per. curiam order denied petitionerys application under the —.. All Writs Statute. —_—__-—. “It is not surprising thet on amazingly similar facts, a eondem- nation statute incorporating another by reference, the incor. | ~porated statute stated to be ‘‘impliedly repealed’? by the ‘“com- piler’s notes,’’ resulted in a decision squarely contra to the decision here questioned. Potler v. Gardner, 222 Ky. 487, 1 S. W. 2d 537 (1927). 4 | f os ee ee _ The astonishing effect attributed ‘to the newly. en- acted. Interlocutory ‘Appeals Act will place unfettered. discretion in United States ylistrict ‘gourts: to: prohibit litigants from seeking an extraordfary writ under the All Writs Statute. gWhere as here, a litigant faces _ ‘irreparable injury: from. an interlocutory order he would truly be without remedy if His only avenue of appellate protection, the extraordinary writ, were un- available. ae be | The All Writs Statute was designed to enable appel- late eourts to protect their jurisdiction. Thus, inter- locutory orders of the court below which would, as. ~ here, permit the destruction of the very res in contro- versy, would render the case moot .if the appellate tribunal were ‘without jurisdiction fo issue, corrective orders under the All Writs Statute.” An interpreta- tion of the Interlocutory Appeals Act which would : prohibit such review whilld truly leave the litigant without remedy—something abhored by the law. : Tie, far-reaching .consequences of a Fring that the Interlocutory Appeals Act amends _ the All Was Statute are but too obvious. By refusing to issue a vertifieate under fhe former, all rights under the latter ‘are dissipated. There is no justification for such an 3 Ag the court stated in United States v. United States District ‘Court, 206 F. 2d 303 (9th Cir. 1953) : > / a ‘Tt is the claim of the United States that there is irreparable | waste under the -court’s order of April 24,° 1953, and that waste of water is destruetion of the res of the case. We have a duty ‘to preserve our appellate jurisdiction in the district court since we may well have to exercise it. . . . Our juris-. diction to entertain the United States’ petition depends upon the necessity of our-order to. preserve the res in the appeal. It is obvious that the_res, to the extent that water is wasted - because of the district court's order, is destroyed.- We-there- fore, hold that the United States has the fight to petition us _ and that we have the right to entertain the petition of the * United States in prohibition or mandamus. . :.”’ (pp. 306-307) as i eet ae statute itself, . —_ a a “urged. to grant this petition for certiorari. 12 } interpfetation of the Interlocutory Appeals Act either in the legislative history or in the language of the — Because the Interlocutery-Appeals Aet is a general xtatute Which introduces a new and needed concept of finality, for appeal purposes, any implication that it gmends the All Writs Statute so as to deprive courts of appeals and this Court-of its jurisdiction to entertain {atitions under the All Writs Statute.should be re- viewed, , - ven, CONCLUSION . For.the foregoing reasons, the Court is respectfully 0 Respectfully submitted, | Perry 8. Patinene Herpert J. MILLER, Jr. Ray MOND @ L,ARROCA ~ 2 KibkLANv, Exuis, _ CHAFFETZ 4 . ’ & MASTERS : 800 World Center Building ‘ Washington 6, D. C. Attorneys for ‘Petitioner James R Eacan, Jr. 555 Fifth Avenue ~ New x ork, New York «Of Count. . ; ro. April 6, 1959 ° ek Sead ‘In ‘Carroll vy. United States, 354° U.S. 394, 414 (1957), this Court stated : ‘‘Sinee the Court of Appeals relied on precedents of general -—— applicability to finality problems in construing the District . of Columbia statutory pyovisions, we do not consider that this case falls within the policy that ordinarily causes us to adhere’ to that court’ 8 View on local law ‘matters."’ (p. 414) S , , @ la APPENDIX A . 4. UNITED STATES COURT OF APPEALS - ; FOR. THE DISTRICT OF COLUMBIA CIRCUIT | ; 7" : ak a No. 14,933 : rah by . SEPTEMBER Tero, 1958 Cc Tue AMERICAN Om Company, Petitioner, 6 ' yy, .- ~ Usitep States oF America and THE Honoras_e JOHN J. Smica, Judge of the’ United States Distriet Court for. the District of Columbia, Respondents. Before: EvGer ON, W ILBUR K. Mitier, and Pauy, Cir- cuit J udges. : , Order This case Mune on forncéonsideration of petitioner’s peti- _tion for extraordinary writ pursuant to 28 U.S.C. § 1651 and on petitioner’s application for an order staying United States and its officers, agents, and employees from taking possession of certain ‘real estate, and said petition and : application were argued by counsel. ‘ | u _ Upon consideration whereof, it is OrpERED by the court that the petition for extraordinary writ-is denied. ‘It is Frrtuer Orpverep by the court that the United States, its: officers, agents, and employees are hereby re-* strained from taking possession of the real estate and gasoline service station located at the intersection: of Wis- consin and Massachusctts Avenues, Northwest, District of Columbia, until after March 7, 1959. Per. Curiam. - Dated: February 6, 1959 . oy Basar @ * - missi 2a IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA District Cowrt Docker No. 28-58 Unitep States or AMERICA, Plaintiff, Lot*800 in Square 1928, containing 5,967.79. square feet, + more or less, in the District of: Columbia, and Tur AMERICAN O1L Company, et al., and unknown owners, Defendants. Opinion : The United States of America, plaintiff, at the request ; of, the” National Capital Planning’ Commission, filed an - ~ action in this court on. October 9, 1958 for the taking of | property under the power of eminent domain and for the °, ascertainment and award of just compensation to the ownergsand parties in interest. - Trial by jury of the issue | ot clnieimadties was demanded by plaintiff. o In its complaint, it is alleged that plaintiff’s authority for taking.is the Act. of Congress of March 1, 1929 (45 Stat. 1415, et seq.), as amended, and the Acts of Congress of June 6,.1924 (43 Stat. 463) and April 30, 1926 (44 Stat. 374) as amended by the Act of July 19, 1952 (66 Stat. 781) establishing. the National Capital Planning Commission, and the Act of Congress of May 29, 1980 (46 Stat. 482). . The use. for which the land is taken is the comprehensive development of the park, parkway and playground syste m of the National Capital. The property involved .in this proceeding is located at the southeast corner of Wisconsin * _ and Massachusetts Avgnues, Northwest. On the same date the complaint was filed, namely, Octo- ber 9, 1958, Harland Bartholomew, Chairman of the Na- tional Capital Planning Com ission’ filed a declaration of ere. this court stating that by direction of the Com- -and pursuant to the Acts of Cengress heretofore 3a pe referred to, the. described property was being taken for public use and was to be used as a part of the park and. ‘parkway system in the District. The Commission esti- ‘mated that the amount of $128,250.00 was just compen- sation for the land taken, with all buildings and improve- ments thereon, and'‘all appurtenances thereto. _This sum has been deposited in the régistry of the Court. In its answer defendant admits-ownership of the land -in question and states. that, because of its strategic loca- tion at the intersection of two.major highways, defend- ant’s gasoline ‘service statidy is a highly. profitable enter- prise that brings large profits to defendant and substantial taxes to thé Federal Government and to the District of Columbia.. The answer also alleges that the declaration - ‘of taking is outside the scope of the Commission’s au- _ ‘ thority as set forth in 40 U.S.C. § 72 and that, in any event, the plaintiff’s Claim for immediate possession is ,unau- thorized since the Commission does not presently have . appropriated funds in order to convért the land for my a thorized public purposes. Defendant also contends th the sum of $128,250.00 estimatéd by the United States-does “not constitute just or adequate compensation for the property. ’ , 4 Motions Futep sy Pussxriry . The plaintiff has filed four motions in the alternative: under-12 (¢) of the Federal Rules of Civil Procedure for judgment on the pleadings; under Rule 12 (d) to: dismiss the answer for failure to state a claim; under Rule 12 (f) _ to strike all.of the, answer except paragraph 1; or under Rule 56 for a summary judgment. Plaintiff states the grounds for these alternative motions as follows: ‘1. The Acts of Congress set forth in the Complaint constitute clear authority for the acquisition by eon- demnation of the lands here involved for the uses set forth therein. The allegations in defendant's an- 4? \. 4a oe we ; e LA = ’ i /~" m ‘swer set forth erroneous assumpWons or conclusions ‘of law or fact or of law and fact. a ‘2. Plaintiff is entitled to posses ipn of defefdant’s lands. asa matter of right. . “3. The Order for Delivery of Possession was ob.- tainedaccording to law. . “4. The asserted ‘objections and dotoniece set forth ‘in defendant’s.answer do not. constitute valid and " legal defenses to the taking of ‘said property or to the delivery of possession of lands herein to plaintiff and fail to. set forth a valid claim upon. which the relief - sought by defendant, can be granted. ‘“5. There is no genuine issue hetween plaintiff and” ’ ‘said defendant, as to any material fact, and plaintiff’ ; is entitled as a matter of law .to ‘judgment on the . issue of the right of the Gov ernment. to condemn the. lands herein involved.”’ - ie. : The ‘Court will treat the motion as one. for summary judgment. _ The defendant contends that t Title 16, §§ 619-644 of the Dintedet of Columbia Code is: not applicable to condemna- tion actions by the Commission in the absence-of repeal. of . 40 U.S.C. §°72. Defendant further states -that the mere fact that the gencral condemnation statate (Title 16, § 619, D. C: Code, 1951 Ed.) was passed subsequent to the en- actment of 40 US C. § 72 is of no legal significance. The Court ‘disagrees: with ‘this contention. It is the opinion of the Court that the Acts of Congress sét forth in” the complaint and declaration of taking constitute clear authority for the acquisition by condemnation of the prop- © - erty herein involved for the uses described in the com- _ plaint. and that the —* is Proce ii ee * in this - litigation. - da He The Nitional Capital Park and’ Planning Commission Act of 1924, (43 Stat. 463) as amended, 40 U.S.C. § 70, ct | seq. (1952 Ed:) gives the Commission the power. to con- demi the property involved :herein for the*’purpose set forth in the Complaint. . Title 16; § 619 of ‘the District of Columbia Code also relied upon by plaintiff states as fol- ‘lows: © a ; e “* “Whenev yer the head, of any pinneitivs department _or independent bureat, or other officer of the United States, or any board or commission of the’ United - States; hereinafter referred to as the acquiring. au- _thority, has been, or hereafter shall be, authorized by ‘ law to aequire real property in fhe District ‘of Colum- _. bia for the construction of any public buildirig’ or. work, - or for parks, parkways, public playgrounds, or any _ other public purpose, such acquiring authority shall -— be and hereby is, authorized ‘to acquire the ‘same in ¢he _ name of the United States by condemnation under ‘judicial; ‘process whenever: in. the-opinion ‘of such, ac- i quiring authority it is,;necessary er advantageous so. | to do; and in every such, case the Attorney General of the United. States, upon the request _ of such ac- “quiring authority, shall cause a proceeding i in rem for such condemnatjon to he instituted in the District Court of the States for the District-of Colum- . bia, holding a sp 1 as a District Court of the. - United States, whi otirt. is hereby vested with juris- ‘diction of. all such cases of condemnation *with full power to hear and determine all issues of law and ” 4 fact that may arise in the same.’ . fe £. e . ’ ‘ ad The Couwt finds that the piaintift is proceeding legally ange” properly and pursuant to Title 16, §§. 619- 644 of the. Dit- ‘triet of Columbia Code. ty However, the Cehiaitass. argues that the language f: 40 US.C. -§ 72 authorizing condemnation for ‘park, parkway and playground uses. by the ‘Conant aa aa r cae ; Cases it to’ follow the “procedures set forth in the Act of August 30, 1890, 26 Stat. 412 (formerly 40.U. S.Cg §\120), ‘. » which does not authorjze a declaration of peg hy he ‘ Commission. . This contention might be ggrreet if it cout ‘ be held that the 1890‘statuté were pperative today. - How- - ever, it is not: The tables in the. ‘official edition. of the. U.S. Code, 1952 Edition, at page 8131, re that. this “statute has been eliminated Trom the Code eing obso- lete and superseded. Why this was done may be under- stood by referring to W illis ve United StatesS 69 App.. ‘D.C. 129, 99 F, 2d 362 (1938). Theelate Justice Vinson . there traced the history of condemnation, procedure in the District of’ Columbia. At page .130 it is stated: . “The statutes relative to the csnibiiiinabiad of Jand in the District: of Columbia are eyoliitions of sev era! prior: acts. of. Congress. Until 1929, the same pro- ~eedure was provfffed for both the United States and the District.6f.Columbia .:. The Act of Angust 30, . . 1890, 26 Staf. 412, 413, §-3, 40 U.S.C.A. g 120, set out.” . the procedure for” the taking” by condemnation. of priv- ate property in the Dis*1 ‘ict of: Columbia. . .-. On | arch 1, 1929, Congress changed the method or pro- cedure in condemnation cases in the, District of Colum- bia. Different methods were provided for the United . States (45 Stat. 1415, c. 416 (now D.C; Code, Title 16, gg 619-644)) and for the District of Columbia (45 Stat. 1437,.c. 439 (now D. c. Code, Title 16, §$. 601- . 604) ). Pe 24 é ‘Thus it is clear that D. C. Code, 16-619 a seq., is ne gon.” trolling: statute here and the dee conformed. to its provisions, The Court also finds that the Commission has monies available to compensate defendant ‘for its property. At the present time there is on deposit in the registry of this -egurt the sum of $128,250.00 which is the amount of money . estimated by the Commission to be just compensation for . . 8 > . ; Ta the property taken. ‘Undoubtedly this money’ was intended by Congress for the pure hase ‘of the land involved, which is to be used for the purpose stated by the Government. Defendants also resist the plaintiff’ s motion fo mary judgment by asserting in>both of its memoranfla of points and authorities that, certain.genuine issues ofjmate- rial fact. exist in this litigation, The fact issues. chi to exist are not properly set forth i in the answer or by means of afflavit but are merely listed at page 7 of both of de- ‘fendant’s memoranda. - Furthermore, this list does not consist of specific allegations or stateinents of fact but rather they are merely speculative questions as. to what procedures might or might not have been followed by the Commission in instituting this action. Byreason of their source and their nature, these questions do not.form-a * sound basis for determining. that a genuine issue of mate-. rial fact exists in this ease. Evén factual statements made, in legal memoranda or points and authorities cannot. be ~ given the dignity of allegations in the pleadings or" state- ménts made ‘by affidavit or by depositiop. Gpldman vy. * Summerfield, 94 U. S: App. D. £. 209, 214 F. 2d 858 (1954). In addition, as Judge Fahy stated in Dewey: ¥. Clark, 86 . U. 5. App. D. C..137, 180 F. 2d 766 (1950) at page 143: o6.. * . There may be no genuine issue ‘even though jay is a’ formal issue. Neither. a purély- formal denial™nor, in every case, genéral allegat®ns, defeat ‘summary judgment ... formalism is not a substitute. for the-necess ty. of a ‘real or genuine issue.’’ - ee a ee | " o* - Thug: fram a consideration’ of ‘the pleadings, it would appeyr that there are no material issues of fact here. ae Coxciesi0s _. The objection and defensen net forth i in defendant’ s an- swer do not constitute valid and legal defenses to the tak- ing of. its property or to the delivery of possession of the propeyty —! herein to plaintiff -and fails to forth a valid claim upon whieh the relief sought by defend. ant can be granted. There is no genuine issue as to any ‘material fact and the plaintiff.is entitled to a judgment as.a matter of. law. Motion for summai y judgment is granted. Counsel for plaintiff will prepare an sighiesiaer order in accordance with this opinion. ‘ oe , Joun J. Sinicw ; , United States District Judge January te 1959 “ t Y ee . 0 % a . ‘ e; ‘ - Be XA > . ss B - % we? = ‘aA. 7 : % » , ee Ls . e ® . + ® « e * . P| Ja ee 4 . : . APPENDIX B Pertinent Statutory Provisions , fe 1. National Capital Planning Act of 1924, Sectidn 2, Act of June 6, 1924, e. an, is, Oe. @, @ Uae §72 (1952) : “Said commission ort a majority thereof is author- . '. ized and direeted to acquire such lands as in its judg- ment shall be necessary and desirable in ‘the District ~- - of Columbia afM@ adjacent areas in Maryland and Vir- _ginia, Within the limits of the appropriations made for such purposes, for suitable development -of the Na- “tional Capital park, parkway and playground systeln. . Said, commission is authorized to acquire euch lands by purchase when they can be acquired at prices rea- ‘sonable in the judgment of said commission, other- * wise by condemnation proceedings\guch proceedings to acquire lands within the Distriet of Columbia to be in aeccordance.with the provisions of Act August 30, ° 1890, c. 837, 26 Stat. 412, the Chief of Engineers of the Army being, for, the purposes of“sections 71, 72, 73 _ aud 74 of this title, clothed with all the power vested by the’said Act of August 30, 1890, in the*board there- , by: created. . 2. National Capital Planning Act of 1952, §2, Act of July 19,, 1952, ¢. ur Stat. 791: **See. 2. Sections 2, [40 U.S.C. §72 quoted supra] 3, and 4 of the Act approved June 6, 1924, as amended, shall be renumbered as sections’ 11, 12, and 13. See- tions 1 and 2 of this Act may*be cited as the ‘National «Capital Planning Act of 1952.’ ’’ - 3. Act of Augnst 30, 1890, ¢. 542, 26 Stat. 412: ‘*See. 2. That to provide accommodation for the Gov- ernment Printing Office, and the construction dof the needed storage and distributing warehouses in con- nection therewith, the Secretary of the Treasury, _ 4 —_, —_ > 10a ae 7 Public Printer, and the Architect of the Capitol. act. ing as a board, be and they are hereby, empowered and instructed. -to acquire, either by purchase or by condemnation | procdedings, as hereinafter provided, the land necessary, in their opinion, for the purposes aforesaid,,and for the purposes stated, the sum of two - hundred and fifty thousand dollars, or so much thereof Aas shall be necessary, is hereby appropriated out of | any méney in the Treasury not otherwise appro- priated.’”’ | “See. 3, That i in the event it shall be necessary, in order to carry out the purpose of the foregoing section. . for the beard, as above constituted, to- acquire land, said board is empowered and directed to acquire the. same by negotiation, where any suclf land may and ‘ean-be so acquired and ‘title secured at a~price: not above--a fair relative value as to other lands which have. been sold in the’ immédiate—vicinity ; or if the said board hereby created shall be unable to purchase, said land by agreament ith any one or more of the respective owners atid reasonable price within sixty | _ days after the passage of this act they are authorized and directed to make application to the supreme court of the District of Columbia, at any.general or special term thereof, by pétition for the condentnation of. such . land not so purehased, and for the ascertainment of its value. @ych petition shall contain a ‘particular \description of the property not‘ so purchased, and elected for the purpose aforesaid, with the name of _ the owner or owners thereof. and their residences, so far as the same may be ascertained, ether with a plan of the land proposed to be:taken; and- there- upon the said court is authorized and required to cite all such owners and*all other persons interested to appear in said court at a time to be fixed by such court, on reasonable nutice, to answer the said petition: _and if it shall appear to the courf that there are ‘any , _— isi: ; ° ti - Ha owners :or other persons ‘interested who -are under disability the court shall give public notice of the time ‘at which the said court will proceed withthe matter of condemnation; and at ‘such time if it shall appear that there are any. personé under disability either who have appeared.or-who have not appearéd, the court shall appoint guardians ad litem for gach sueh persons, — and the court shall thereupon proceed to appoint three capable and disinterested commissidners to appraise the value of. the respective interests of all persons con- cerned in such lands, ‘under such regulationis ‘as to notice aml hearing as to the.court shall seém meet. Such commissioners shall thereupon, after being duly sworn for the proper performance of their duties, examirfe the premises and hear the persons in interest may appear before them, and return their ap- poe Pl of the value of the ipterests of all persons, respectively, in such land; and when such report shall have been confirmed by the court the President of .the P United States shall, if he think the public interest requires it, canse payment to be made to-the respective ‘persons entitled according to the judgment of the court, atid in case any of such persons are under dis- ability, or can not be found, or neglect to receive pay-: " . ment, the money to be paid to any of them shall be deposited'in the Treasury to their credit, unléss there shall be some person lawfully authorized to receive the same under the direction of the court, and when such payments are so made, or the amounts belonging © to, persons to whom payment shall not be made are so deposited, the said lands shall be deemed to be condemned and taken by-the United States for the -publie use. And hereafter, in all cases of the taking . of property in the ‘District of Colunthia for public use, whether herein, heretofore, or ‘hereafter author- ized, the foregoing provisions, as it respects the ap- - plication by the proper officer to the. supreme court 12a of the District of Columbia and the-proceedings therein _ shall be as in the foregoing provisions deelared.”’ 4. Act of March .1, 1929, § 1, ¢. 416, 45 Stat. 1415: ‘Whenever the head of any executive department — ot independent bureau, or other officer of the United States, or-~any board or commission. of the United States, her€inafter referred to as the acquiring au- thority, has -been, or hereafter shall be, authorized by law to. acquire real property iny ther District of Columbia for the construction of any ppblic building or work, or for parks, parkways, publie playground: or other public purpose, such acquiring authority shall be, and hereby is, authorized to acquire the same in the name of the United States by condemnaiion | under judicial process whenever in the opinion of such, acquiring authority it is necessary or advantageous so . to do; and in every such case the Attorney 4eneral . of the United States, upon the request of such aecqnir- ing authority, shall cause a pmeeceeding in rem for ‘such condemnation to be instituted in the District Court of the United States for the District of Columbia. | holding a special term as a District Court of the United ; States, which conrt is hereby vested with jurisdiction of all such cases of condemnation with full power to hear and determine all issues of law and fact that may arise in the same.’’ 5. Aet of July 30, 1947, ¢. 388, § 1, 61 Stat, 633. a amended, Act of September 23, 1950, e. 1001, $1, 64 Stat, O70. Act of Oct. 31, 1951, ¢. 655, § 3, 65 Stat. 710, 1 U.S. $112 (1952)- ‘-The Administrator of General Services shall canse to be compiled, edited, indexed, and published, the ‘United States Statutes at Large, which ‘shall contain all the laws and concurrent resolutions enacted during each regular session of Congress; all proclamations 13a ~ by the President in.the numbered series_issued since - the date of the adjournment of the rgfular session of Congress fext preceding: and also-apy amendments to the Gonstitution of the United Stéjes proposed or ratified pursuant to article V thereof since that date, together with the certificate of the Administrator of General Services issued in compliance with the pro- vision contained in section 106b of this title. In the event of an extra—session of, Congress, the Adminis- trator of General Services shall cause all the laws and concurrent resolutions enacted dtring said extra session to be consolidated with, and published as part of, the contents of the volume ‘for the next regular _ session. The United States. Statutes at Large shall be legal evidenge of laws, concurrent resolutions, treaties, international agreements other thwn-treaties, proclamations by the President, and proposed or rati- : fied. amendments to the Constitution of the United States therein contained, in all the courts.of the United States, the several States, and the -Territories and ~ pisular eens « the U ulted States." ‘hh of July 30, 1947, 6. BRR, , 61 Stat. 633, 1-0 SC. §204(a) (1952). | **(a) United Staten. Code—The n matter set forth in the edition of the Code of Laws of the United Stat ‘current at any time shall, together with the then rent supplement, if ‘any, establish prima facie -\he laws of the United States, general and permanent \ their nature, in force on the day preceding the com- mencement of the session following the last. sessien the législation of which, is included: Provided, how- ever, That whenever titles of such Code shall have heen enacted into positive law the text thereof shall be legal evidence of the laws therein contained, in * all the courts of the United States, the several States, , ‘= l4a ; : and the Territories and insular possessions of the 4 United States... .’” ‘ta 1 U.S.C. § 205 (1952) : SOE ds ene noe { “*Phe publications p provided. for in sections 2 202; 203 i of this title shall be printed at the Government Printing |, Office and shall be in such form and style and with. | sueh ancillaries as may be prescribed by the Com- | mittee on the Judiciary of the House of Representa- tives. The Librarian of Congress is djrected to co- operate with such committees in the preparation of - such ancillaries: Such publications shall be furnished | _ with such thumb insefs and other devices, to ‘dis- tinguish parts, with such facilities for the iuoortion of additional matter, and with such - ‘explanatory and ad- f. vertising slips, and shall be printed on such paper § and hound in such material, as may be prescribed by. such —: July 30, 1947, ¢. 588, $1, 61 Stat, 633. , adanllnnatinine Appeale Acf of eptember 2 2, 1958 Stat. 1770, 28 U.S.C.A. §1292(b) (Supp. 1958). “*When a distrit-mnidge, ‘ifmaking ina civil action an order riot otherwise appealable under this section. shall be of the opinion that such order involves a con; trolling question of law as, to which there is sub- stantial ground for difference of opinion and that an — immediate appeal from the order may ‘materially ad — - vance the ultimate termination: of the litigation, he shall so state in writing in such order. . The Court of. Appeals may. thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it'within ten days after the entry of the order:. Provided, howevér, That applicafion for an appeal hereunder shall not stay proceedings inthe od a unless the district’ judge or the Court of yeas or a judge thereof shall so order. * 3 ue | ‘ NCH ~{.6@ 4 15a re a 8. The All Writs Statute of June 25, 1948, e, 646, 62 Stat. 944, as amended, May 24, 1949, c. 138, § 90, 63 Stat. 102, 28 U.S.C. § 1651(a): 3 “The Supreme Court and ‘all. courts: established by Act of Congress may” issue all writs necessary or appropriate’ in aid of their respective jurisdictions and agreeable to the usages and principles of law.”’ = --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA04386419_0828%3A2. Public record. Not legal advice.