Petition for Rehearing — Garrow v. United States

Supreme Court brief1943

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Supreme Court of the

United States

October Term 1942

No. 634

J. WANROY GARROW, MARCITA D. GARROW

and VIRGINIA BULLOCK-WILLIS, ae a

Petitioners,

UNITED STATES OF AMERICA

PETITION FOR REHEARING —

J. GAILLARD HAMILTON,

THOMAS A. HAMILTON, -

Hamiltons

Of Counsel

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INDEX

Page

SE: 2 0 bxcinnnetaann neh enndneemae maa i-li

Grounds of Petition for Rehearing _____ ..___--__-_- 1

1. Where no absolute cash payment and no

compensation in money for period before

payment becomes absolute, yet held just

compensation made, is revolutionary_-__----- 1

2. (a) Miller case and others hold Fifth

Amendment requires “full and_ perfect

equivalent in money” and “as good position

pecuniarily” as if land not taken, and _____-_- 2

2. (b) To be such, there cannot be a gap with-

out land or money equivalent, and just com-

pensation for interval necessary, and __---_-_-- 3

2. (c) Therefore (1) either amount deposited

must constitute just compensation pro tanto,

or (2) if not, then there must be additional

just compensation for period between the

land’s taking and the judgment, with nature

and attributes required by Fifth Amendment__- 3

Neither amount of deposit, nor any certain part of

it, just compensation pro tanto, if subject possible

subsequent reduction by verdict and judgment, as

would not be absolute payment in whole or any

COG DIG ciccinc cn cetinanncwendacuabrennncns 4

In such ease, for the consequent interval between

taking the land and verdict and judgment, there

would not be just compensation in money, as Act

prohibits interest on amount deposited ___-------- 7

IN D E X (Continued)

Page

Therefore Government’s construction would vi-

olate Fifth Amendment fundamentally and amount

deposited must be paid landowner absolutely as

just compensation pro tanto ___.___-------------- 12

Act’s provisions intended harmonize with Fifth

I a a aly 12

Considering Act’s construction in Miller case____- 13

Considering Construction in Garrows’ case in

Cireuit Court of Appeals .................... 15

i vi one He

CITATIONS

Page

11 American Jurisprudence, Tit. “Constitutional

RT. Oh BE eb badd tesa kateedcc bunaatie 6

Brooks-Scanlon Corp. v. U.S. 265 U.S. 106,

ere rae ONAN TELM CMe RN RTS 2, 3, 4, 7

Charles River Bridges v. Warren ae 11 Peters

ty BR. + scm mieten peleaden 6 coeeiat 11, 13

EERE. x nnuihdnnnee sold iman samme 5

16 Corp. Jur. Secundum Tit. “Const. Law” 1205____ 6

COR Un WOK G0 AO ono chs 4

Danforth v. U.S. 308 U.S. 271, 288-4_2, 8, 8, 7, 8, 12, 15

Jacobs v. U.S. 290 U.S. 18, 16________ 2, 3, 4, 7, 11, 16

2 Lewis Eminent Domain 8d ed. Sec. 682, 756______ 5

1 Nichols Eminent Domain 2d ed. 205 ____________ 5

Olson v. U.S. 292 U.S. 246, 254 _.._________ 2, 2, 4, 7

Phelps v. U.S. 274 U.S. 341, 844 _________ 2, 2, 3, 4, 7

Russian Vol. Fleet v. U.S. 282 U.S. 481, 492...... 16

2 Schouler “Personal Property” 3ed. Secs. 2 and 3___6

Seaboard Air Line v. U.S. 261 U.S. 299, 304_____-_ 2,8

ee i) ee Sek ee eee See ee eee ee ee Se a Se

CITATIONS (Continued)

Page

State etc. v. Zetrour 142 So. (Fla.) 217, 218 ____-_- 14

U.S. v. Creek Nation 295 U.S. 108, 111, 112______ 2,4

U.S. v. Goltra 312 U.S. 208, 208 ............__- 3, 9

U.S. v. Klamath 304 U.S. 119, 122__________ 2, 8, 4, 7

U.S. v. Miller 87 Lawy. ed. Adv. Op. 251___-1, 2, 4, 4

U.S. v. New River Collieries 262 U.S. 341, 348_____ 12

U.S. v. Rogers 257 Fed. (8C.C.A.), 397, 399

peg Bk Bp eee By By B, 4,7

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1942

No. 634

J. Wanroy Garrow,

Marcita D. Garrow, and

Virginia Bullock-Willis,

Petitioners,

vs.

United States of America

PETITION FOR REHEARING

TO THE HONORABLE HARLAN FISKE STONE,

CHIEF JUSTICE, AND THE ASSOCIATE JUSTICES,

OF THE SUPREME COURT OF THE UNITED

STATES.

Come the Petitioners in the above entitled cause

and respectfully pray that a rehearing of their petition

for certiorari may be granted on the following

grounds :—

1. Because according to the Garrow case, ap-

proved by this Court in United States v. Miller® (Jan.

7, 1943), in causes arising under the Declaration of

Taking Act the amount deposited would be reducible

by subsequent verdict and judgment, and therefore

could not constitute absolute payment in whole or any

certain part before such verdict and judgment, and for

the interval between taking the land and absolute pay-

ment therefor interest on said amount is denied by the

TEL 2 SRO RSE VERILY GEE SINT SEE SB ISN IES IOS

Act, and accordingly there would be no compensation

in money covering said interval, thereby creating a

revolutionary change in both precedent and principle

(it being of the nature of a forced sale) which require

full and just compensation covering said interval under

the Fifth Amendment, payable in the only universal

medium of exchange and measure of value, namely

money.®

2. (a) Because this Court in the first part of the

Miller case itself, has just restated (Jan. 7, 1943) the

basic and correct principle which Petitioners conceive

underlies this cause, as follows:—‘“The Fifth Amend-

ment of the Constitution provides that private property

shall not be taken for public use without just compen-

sation. Such compensation means the full and perfect

equivalent in money of the property taken. The owner

is to be put in as good position pecuniarily as he would

have occupied if his property had not been taken’”®

(Our emphasis) ; and

® Jacobs v. U.S. 290 U.S. 18, 16; U.S. vs. Klamath

304 U.S. 119, 123 (“The established rule”) ;

Danforth v. U.S. 308 U.S. 271, 283-4; Phelps v.

U.S. 274 U.S. 341, 344; Brooks-Seanlon Corp.

v. U.S. 265 U.S. 106, 128; U.S. v. Rogers 257

Fed. (8C.C.A.) 397, 399, Affd. 255 U.S. 163;

Olson v. U.S. 292 U.S. 246, 254; U.S. v. Creek

Nation 295 U.S. 108, 111, 112.

® 87 Lawy. Adv. Opinions p. 251 (stated relative

to value of the land, but also citing Seaboard

Air Line v. U.S. 261 U. S. 299, 804, which ap-

plies to cover delay). Supporting this conclu-

sion, besides the cases cited are Phelps v. U.S.

274 U.S. 341, 344; U.S. v. Rogers 257 (8C.C.A.)

397, 399 Aff’d. 255 U.S. 168; Olson v. U.S. 292

U.S. 246, 254; C. B. & I. R.R. Co. v. U.S. 16

Wall. 667, 674.

SP ERTS arta cial ent

2 (b) Because in order that there should be such

“full and perfect equivalent in money” and the former

landowner be “put in as good a position pecuniarily”

as “if his property had not been taken”, there obviously

could not be a gap following such taking as to the whole

or any part of such compensation during which he

would be without either the land or its money equiva-

lent, and accordingly it is held that such “compensation

is due at the time of taking”,® and if the “taking pre-

cedes the payment of compensation, the owner is en-

titled to such addition to the value at the time of the

taking as will produce the full equivalent of such value

paid contemporaneously. Interest at a proper rate is a

good measure of the amount to be added;”® and

2 (c) Therefore for the Act to be constitutional,

either (1) the amount deposited must constitute just

compensation (or “the full and perfect equivalent in

money”), pro tanto, paid substantially at the time of

taking, when it is “due”, or (2) if not, and a subsequent

determination by verdict and judgment are necessary

to make it such just compensation (or the “full and

perfect equivalent in money”) then just compensation

must be made for the period between the taking of the

land and the judgment, with the nature and attributes

required by the Fifth Amendment.

Jacobs v. U.S. 290 U.S. 18, 16; U.S. v. Klamath

304 U.S. 111, 123 (“the established rule’) ;

Phelps v. U.S. 274 U.S. 341, 344; U.S. v. Rogers

257 Fed. (8C.C.A.) 897, 399, Aff’d. 255 U.S.

163; Danforth v. U.S. 808 U.S. 271, 2838-4;

Recognized as to eminent domain in the ve

late case of U.S. v. Goltra 312 U.S. 203, 208.

ASEAN WEARS Tr AVN se io Ae SRG RANE iy

On the first branch of the alternative just men-

tioned in 2 (c), could the amount deposited and paid

the former landowner constitute, pro tanto, “the full

and perfect equivalent in money of the property taken”

paid substantially at the time of taking within the

meaning of the Fifth Amendment, if it were construed

as being subject to possible diminution by a subsequent

verdict and judgment?

The Fifth Amendment requires just compensation

for the land’s value to be made by payment in money.©

Nothing is said of any qualification or restriction or

condition as to the ownership or use of such money,

and manifestly complete and absolute ownership of

money, as money, is intended. “Market value” itself,

the standard of the owner’s indemnity, is “what a will-

ing buyer would pay for cash to a willing seller”’,® and

such language could only signify complete transfer of

the ownership of money, as money. Only full owner-

ship could cause money to function as money, namely

as a “representative”, “measure” or “standard of val-

ue”, and a “medium of exchange” or “payment”

(“Money” 40 C. J. top 490). The basic principle in-

volved in eminent domain is well stated in Van Horne

vs. Dorrance 2 Dallas 304, 315, where the statute had

prescribed so-called compensation in land:—

87 Lawy. ed. Adv. Op. 254 “full and perfect

equivalent in money”; Brooks-Scanlon Corp.

U.S. 265 U.S. 106, 123; Jacobs v. U.S. 290 U.S.

13, 16; Phelps v. U.S. 274 U.S. 341, 344; U.S.

v. Creek Nation 295 U.S. 108, 111, 112; U.S. v.

Klamath 304 U.S. 111, 123; U.S. v. Rogers 257

Fed. (8C.C.A.) 397, 399, Aff’d. 255 U.S. 163.

“By the Act the equivalent is to be in land. No just

compensation can be made except in money. Mon-

ey is a common standard, by comparison with

which the value of anything may be ascertained.

It is not only a sign which represents the respective

values of commodities but it is an universal medi-

um, easily portable, liable to little variation, and

readily exchanged for any kind of property. Com-

pensation is a recompense in value, a quid pro quo,

and must be in money. True it is, that land or any

thing else may be a compensation, but then it must

be at the election of the party; it cannot be forced

upon him. (Our emphasis). His consent will le-

galize the act, and make it valid; nothing short of

it will have that effect. It is obvious, that if a jury

pass upon the subject, or value of the property,

their verdict must be in money.”

“This compensation must be pecuniary in its char-

acter because it is in the nature of a payment for a com-

pulsory purchase”’.©®

Therefore for the money deposited under the De-

claration of Taking Act to constitute just compensa-

tion or “the full and perfect equivalent in money,” pro

tanto, paid substantially at the time of taking, within

the meaning of the Fifth Amendment, such payment

must be absolute.

But if the amount of such deposit, or its payment to

the landowner, were subject to possible diminution by

subsequent verdict and judgment, what would be the

effect?

® 2 Cooley “Constitutional Limitations”, 8th ed.

1201, See 2 Lewis “Eminent Domain” 3d. ed.

Secs. 682, 756; 1 Nichols “Eminent Domain”

2d. ed. Sec. 205.

It is submitted the mere possibility of subsequent

reduction in an uncertain amount by verdict and judg-

ment, would until then, manifestly prevent the whole

or any definite part of the amount deposited from being

the absolute property of the former landowner.

Consequently until verdict and judgment neither

the whole nor any certain part of such amount could be

disposed of absolutely by the former landowner, as in

payment of debts, without peril of paying out what

he might be called on later to return. Nor could even

investment use be made without similar danger in event

of loss, nor made at all, except with much embarrass-

ment, as it would involve an attempt to invest a sum

not certainly owned in any certain amount and for an

uncertain period till verdict and judgment. Of course,

insofar as it was unused, pecuniary benefit before ver-

dict would be precluded. Manifestly such consequen-

ces would keep the money deposited, or any definite

part thereof, from being owned absolutely and deprive

it of certain “essential attributes of private property.”®

The result therefore of the Government’s construc-

tion that the amount deposited or paid could be re-

duced by a subsequent verdict or judgment, is that such

amount could not constitute just compensation (or “the

full and perfect equivalent in money”) pro tanto, paid

substantially at the time of taking, and that such con-

struction consequently would prevent the Act from be-

ing constitutional on this, the first, alternative men-

tioned in ground 2 (c) hereinbefore. What would be

the effect of said construction upon the other possible

11 American Jurisprudence, Tit. “Constitutional

Law” p. 1146, 16 Corp. Jur. Sec. Tit. “Const.

Law” 1205, 2 Schouler “Personal Property” 3d.

ed. Secs. 2 and 8.

—

alternative mentioned in said ground 2 (c), namely,

as to additional just compensation for the period be-

tween the taking and the verdict and judgment? And

in order for said construction to be tenable and permit

the Act to be constitutional it must accord with one or

the other of these two alternatives.

What then, in this latter connection, would result

from such a possible subsequent diminution of the

amount deposited or paid? In such case as there would

be no absolute payment in money, and hence no just

compensation made at the time of taking, there would

be an interval elapsing between such taking and the

verdict and judgment making the amount definite,

the ownership absolute and just compensation a fact.

All the cases, up to the Garrow and Miller cases, have

held that if such a period elapsed between the taking

and the payment of just compensation for the value of

the land itself, the Fifth Amendment requires just and

full compensation for such period of deprivation of

both the land and its monetary value, and that interest

at a proper rate is a proper measure for such interim

compensation.© The cases make no distinction between

the nature or character of the just or full compensation

required for the value of the land itself, on the one

hand, and for the interval between the taking of the

land and the payment of just compensation, on the

other. For the land’s value, it must be made in the only

US. v. Klamath 304 U.S. 119, 123; Brooks-

Scanlon Corp. v. U.S. 265 U.S. 106, 123; Jacobs

v. U.S. 290 U.S. 18, 16; Danforth v. U.S. 308

U.S. 271, 283-4; Phelps v. U.S. 274 U.S. 341,

344, U.S. v. Rogers 257 Fed. 8 C.C.A. 397, 399,

—* 255 U.S. 163; Olson v. U.S. 292 U.S. 246,

54.

Re ER

universal medium of exchange and measure of value,

namely money, and being of the nature of a compul-

sory purchase or sale, that would seem to be the only

fair way to measure such value and pay for it. The

reasons therefor are discussed heretofore in that con-

nection. Likewise in the nature of things, there must

be expression in value and payment accordingly, for

the loss resulting from the interval of delay, and the

same principles of valuation and payment for the land’s

value in money would in reason apply to just compensa-

tion for this interval or period before absolute payment.

The principle of the “full and perfect equivalent in

money’ at the time of taking, and of being “put in as

good position pecuniarily as if his property had not

been taken”, announced in the first part of the Miller

case as to its value at the time of taking, would seem

manifestly also applicable to such peried of depriva-

tion, otherwise, in event of delay without just compen-

sation, the owner would not be “put in as good position

pecuniarily as if his property had not been taken,” nor

receive the “full and perfect equivalent in money of the

property taken” (Phelps v. U.S. 274 U.S. 341, 344) as

compensation is payable “as of the time when the own-

ers were deprived of their property” (Seabord Air Line

v. U.S. 261 U.S. 299). It is difficult to see how this

principle could consistently or in reason, be limited

to the value only at the time of taking and would not

also extend to any delay in absolute ownership and

full enjoyment, as otherwise there would be a period

of deprivation of both the land and also its full and

absolute money value without full compensation for

such deprivaticn. That just compensation in the form

of a sum in the nature of interest for any delay is neces-

sary under the Fifth Amendment, there being involved

“the requisitioning or taking of property by eminent do-

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sete ctarscitrwtetce

main under authority of legislation” has been explicit-

ly recognized in the very late case (Feb. 3, 1941) of

U. S. vs. Goltra 312 U. S. 203, 207, 209.

In short, both precedent and principle require that

where there is an interval between the taking of the

land and the payment of just compensation (or the full

and perfect equivalent in money) within the meaning

of the Fifth Amendment, that just or full compensation

to cover such interval must be made.and made in

money.

But the Declaration of Taking Act states specifi-

cally that “interest shall not be allowed” on the amount

that has been paid into Court. Thereby would be pre-

cluded under the Act any compensation in money for

said interval or period prior to verdict and judgment.

This definitely establishes that for the period from

the taking of the land to the verdict and judgment, ad-

ditional just compensation with the nature and attri-

butes required by the Fifth Amendment, was not in-

tended by the statute. Consequently the Government’s

construction would negative this only other possible

alternative ground 2 (c)) necessary to permit the Act

to be constitutional. :

Suppose it were argued, however, that the so-

called use of the amount of money deposited, pendente

lite, would constitute just compensation within the

meaning of the Fifth Amendment for said interval prior

to absolute ownership. Of course this would not con-

stitute payment in money, and would deprive the owner

of the standard for measuring value, which, we submit,

the Fifth Amendment requires. And it would have

to be held that the greatly restricted, hampered and

hazardous use of the amount deposited, with the pos-

sibility of having to refund no knowing how much of

it, would constitute just compensation within the mean-

ing of the Fifth Amendment for the period before ab-

solute ownership. This would mean that such em-

barrassed so-called use of the amount deposited would

be forced upon the owner under penalty of loss of all

interest. Then when taken, in so far as it might be

used, there would be peril of inability to replace what

later he might be called upon to return, and the re-

cipient would have no way to determine the extent of

such subsequent reduction, nor could he conclude such

amount would approximate the subsequent verdict,

as the difference might be very substantial—in the Gar-

rows’ case it was reduced 33 1,//3%. In so far as it

were not used there would be lost interest or other ben-

efit that might accrue from use. In short, there would

be forced upon him so-called compensation that would

not be money and would be most difficult, awkward

and in large and unknown measure perilous to handle,

with accompanying inevitable harassment. See de-

tails worked out in original brief pp. 32-34, showing

that no matter what he might or might not do he must

suffer either financial loss or great embarrassment.

Could all this be properly regarded as just compensa-

tion? Could it be the equivalent of money in the na-

ture of interest having definite financial value and

unembarrassed and absolute ownership? Would it not

be an excellent illustration of what is not just com-

pensation?

Furthermore, the question of equivalency of value

or adequacy of such greatly restricted use, to the loss

or injury from the interval without either the land or

absolutely owned money, as _ between contending

parties, would be a question of fact for a jury. And

Congress could not determine this legislatively as that

would make the United States judge in its own cause

(11 Peters, at 571)—it would be a judicial question

and being of fact, for a jury.

It is respectfully submitted that there is here in-

volved the whole just and constitutional foundation of

a “full and perfect equivalent in money for the prop-

erty taken” “as of the date of its taking”, including just

compensation for whatever period may elapse between

the time of taking and the payment of absolute or just

compensation in eminent domain proceedings. To up-

hold the construction given in the Garrow and Miller

cases would countenance, and under the Act in this

case result in, the abrogation of the heretofore justly

established principle requiring “just, not inadequate

compensation” (Jacobs case, 290 U.S. 13, 16) and in

money, as it relates to that interval between the taking

and absolute payment. It would have the effect, of

determining and establishing the precedent, that such

mere limited precarious and conditional use, for an

uncertain period, constitutes a proper measure of com-

pensation covering said interval before the payment of

just compensation for the land’s value, and thus aban-

don the sound and established principle that the only

proper measure and form of compensation covering

such interval must be money, with the usual attributes

of money absolutely paid, in the nature of interest.

In brief, a construction whereby diminution of the

deposit would be possible by subsequent verdict and

judgment conflicts with the Fifth Amendment, in that

according to it,

1. Neither the amount of the deposit nor any

certain part of it would be just compensation, pro

- - —

BN CLR EMS AE AAI ION ML PEE ENE TR DIA AIEEE BLE LIE OIE ce. OR bates SREP RELS eee

tanto (the absolute property of the landowner) until

verdict and judgment, and

2. For the interval between the taking of the

land and said verdict and judgment there would not be

just or full compensation in money properly measured

by interest, as interest is prohibited by the act.

The consequence is plain, that such construction

cannot be indulge 1, and the amount of the deposit must

be intended to be paid absolutely to the former land-

owner as just compensation pro tanto—unless the act

were unconstitutional, which no one contends.

If this argument be correct (and we respectfully

submit it has never yet been answered), the violation

of the Constitution by such construction would be

fundamental. The whole amount deposited would be

vested absolutely in the former landowner and any re-

duction would plainly be confiscation of vested prop-

erty—$4500 of the Garrows, $1500 of Mrs. Willis—

thereby cutting at the very roots of just and honest

government. To the United States it could not be un-

just, as that amount was its own valuation and the sum

it proffered as the purchase price.

Nor would war suspend or affect the just com-

pensation mandate of the Fifth Amendment (U.S. v.

New River Collieries 262 U.S. 341, 848; Phelps v. U.S.

274 U.S. 341 where interest was adjudged). Moreover,

the present suit was begun nearly two years before

this country entered the war, and the Act itself was

passed years earlier still.

The Act itself, it is respectfully submitted, shows

the intention to harmonize with the Fifth Amendment.

The amount of money deposited is to be paid “forth-

with” to the parties in interest “for or on account of”

BoE.

(ie. in full or pro tanto payment) the just compensa-

tion to be awarded in said proceeding, and in event of

an award for a higher amount then interest at 6% on

such additional amount shall be included in the judg-

ment “as part of the just compensation awarded,” “but

interest shall not be allowed on so much thereof as shall

have been paid into court,” and judgment shall be

rendered against the United States only for such addi-

tional sum and interest thereon. The distinction so

drawn as to interest between the cash payment and

the deferred additional payment seems palpably in-

tended to recognize and accord with the Fifth Amend-

ment as Petitioners have argued. And the only judg-

ment against the United States being for such addition-

al sum, if any, and interest thereon, apparently indi-

cates the amount deposited is treated as having already

vested in the landowner as his absolute property and

as not needing the judgment to vest it or any part of it

in him. Apparently the only issue intended was

whether or not he would be entitled to any additional

sum. Further confirmations in the Act are noted in

Petitioners original brief, pages 28, 24, e.g. the em-

ployment of the same terms “use” and “vest” as to both

the rights of the United States in the land and those

of the landowner in the compensation.

Considering the Act as construed in the Miller

case, it may be said:—

“Estimated Compensation” would be the only

correct expression as between adversary interests, as

the landowner could not justly be bound by it for to

do so would be to make the United States judge in its

own case, i.e. as to the amount of the compensation.

Charles River Bridges Co. v. Warren Bridge 11 Peters

420, at 571. But it would by no means necessarily

em ee

have the additional meaning that it was provisional as

to the Government, as thereby would become possible

subsequent diminution with intervening uncertainty of

the sum to belong to the landowner, which taken with

the Act’s denial of interest, would create a conflict with

the Fifth Amendment. And there would be no reason,

in justice, as it would be the Government’s own val-

uation.

“Payment ‘on account of’ compensation” undoubt-

edly is “not a final settlement with the owner,” yet, it

is submitted, its normal meaning is payment pro tanto,

or in that much, on what amount may finally be de-

termined to be due, here payment pro tanto or in that

much of the just compensation, itself, which a subse-

quent judgment may determine should have an addi-

tional amount added in order to constitute just com-

pensation in full.

As to any injustice to the United States if the

amount deposited were not subject to possible reduc-

tion on the theory that its agents would be encouraged

to make estimates in order to be safe as against a pos-

sible lower verdict, and that this would lead to judg-

ments for larger additional sums thereby increasing in-

terest the Government would have to pay, it may be

said (1) that on the Government’s own theory, an

equal occasion for causing underestimates for safety’s

sake would exist, as under the statute the amount de-

posited is to be paid out immediately regardless of the

responsibility or solvency of the landowner, and being

so paid getting it back would frequently be futile as

there would often times be no means by which to en-

force its restoration (See State ete. v. Zetrouer,

142 Southern (Fla.) 217, 218), and (2) that said

theory cannot answer Petitioners’ argument, which we

De I Te SE

submit, shows that such construction would deny just

compensation within the meaning of the Fifth Amend-

ment;

As to denying the owners the “immediate use of

cash approximating the value of his land.” If the

Government’s valuation were paid absolutely under

the Fifth Amendment, there would be no such denial.

If not paid absolutely, any use could be only the much

restricted, conditional and precarious use noted above,

contrary, it is submitted, to the Fifth Amendment. Sup-

posed approximation could not be relied on, as the dif-

ference might well be substantial — in the Garrows’

case, 88 1/3%.

As to the statute’s purpose to give the Government

immediate possession and release it of the “burden of

interest” on the sum deposited. If an absolute payment

of the just compensation pro tanto were made this

would be unobjectionable. But if not such an absolute

payment, and it were only “provisional” as to the

Government, then the Government could not deprive

the owner of his land without absolute payment until

verdict and judgment and also fail to compensate him

in money for such interval of deprivation of both land

and absolute payment, except in violation of the Fifth

Amendment.

As to the Garrow case in the Circuit Court of

Appeals:

The Fifth Amendment though not requiring pay-

ment to be first made, does intend that payment is “due

at the time of taking” (Danforth v. U.S. 308 U.S. 276,

283-284) and requires the full equivalent of the land’s

value as if paid contemporaneously with the taking in-

cluding added compensation if not paid at the time of

AF rnnte Pit ee

taking, usually measured by interest (Cases Supra).

In order that the Act might be construed as au-

thorizing a reduction in the Government’s valuation, it

would be necessary to interject a condition by impli-

cation to that effect, which it is submitted, is unauthor-

ized, especially as it would raise a grave constitutional

question (Russian Vol. Fleet v. U.S. 282 U.S. 481, 492).

It also would be unreasonable as involving the futility

often times of the Court’s inability to enforce a return

of any part of the money.

It is submitted that the Circuit Court of Appeals

omitted the crux of the whole matter, namely the bear-

ing of the Fifth Amendment on the statutory provision

denying interest on the amount deposited.

It also confines its consideration to the value of

the property only, omitting any consideration of the

delay in the absolute ownership until verdict and judg-

ment, for which, additional just compensation would

be required, otherwise the compensation would be not

just but “inadequate.” (Jacobs v. U.S. 290 U.S. at 16).

Taking it altogether, could it be possible that the

Act is constitutional in itself, but by the Government’s

construction would be caused to operate unconstitu-

tionally?

The requirement of just compensation for prop-

erty of the citizen taken by the Government is not alone

of private concern but of the utmost public importance.

It is essential to just treatment of the individual citizen

by the Government, and basic to a proper relation of it

to him and fundamental to all sound Government.

Otherwise, confiscation and the sacrifice of the indi-

vidual for the undue advantage-of the rest of the pub-

lie would lack what should be an effective barrier. The

morale of all citizens is in substantial measure sup-

ported by a belief in the full protection afforded by

Government to every citizen in his just rights. Its pre-

servation in complete integrity is manifestly of the

greatest consequence to the public welfare and should

compel the closest scrutiny of any attempt of whatever

nature, including governmental interpretation of stat-

utes, which might in any manner impair its efficacy.

The greatest danger to the basic principles upon which

this Government is founded, and which make life under

it freer and fuller than under any other Government,

lies not in open and direct conflict but in silent ap-

proaches, the real nature of which is doubtless often

not realized by the actors, and often not at first appar-

ent to the Court, but which in fact constitute an under-

mining force, and if not recognized and checked, would

cause serious impairment to some part of the social

structure. And of it, just compensation for property

taken is a vital part.

Respectfully submitted,

J. GAILLARD HAMILTON,

THOMAS A. HAMILTON,

Hamiltons Attorneys for Petitioners

Of Counsel

CERTIFICATE OF COUNSEL

I, J. Gaillard Hamilton, counsel for the above

named Petitioners, do hereby certify that the foregoing

petition for a rehearing of this cause is presented in

good faith and not for delay.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.