Opposition Brief for the United States — Suhren v. United States

\

In the Supreme Court of the Uuited States

OcToBER TERM, 1969 |

No. 1004 re

A. C. SUHREN, LyDIA Cook SUHREN, ET a

PETITIONERS

% f

oe |

Se

UNITED. STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

_UNITED STATES COURT OF APPEALS - |

; — THE FIFTH CIRCUIT

mee 4

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW ~

The. opinions of the court of appeals, Pet. App. 16-

28, and, on rehearing, 29-34, are :reported at 399

F.2d 485 and = F.2d 784, respectively.

<

‘ cd URISDICTION

The final judgment of the court of appeals was —

entered on August 7, 1969. On October 24, 1969,

Mr. Justice Black entered an order extending the

(1)

&

2

‘

- time for Ailing a petition to January 3, 1970. The |

petition/was filed on December 29, 1969. Jurisdic-:

tion of thfs Court is invoked under 28 U.S.C. 1254

(1). |

QUESTIONS PRESENTED .

1. Whether the United States, which had provided

federal. financial and’technical assistance in filling

submerged land under Mississippi Sound and con-

structing a beach to protect a seawall pursuant to a

contract with Harrisort County, Mississippi, was en-

titled to specific enforcement of the county’s agree-

ment in the contract to assure perpetual public use

.of the beach.

2. Whether enforcement of the contract is incon- .

sistent’ with the Submerged Lands Act, 43 U.S.C.

1301 et seq. -

)

. aa 9

STATEMENT

This suit was brought by the United States to en-, * |

force its contract with Harrison County, Mississippi,

wherein the County, in return for a federal contri-

‘ bution of $1,333,000 and technical ‘assistance in .the -

repair of hurricane damage to the, \7-mile seawall

along Mississippi Sound and construction of a sand

beach as further protection, agreed “to provide. at its

own , expense all necessary lands, easements, and

"ea?

use of the beach and the administratidh theréof for

public use only” (Pet. App. 24). The factual and

statutory background of this| contract, which was

~ { .

~ ww

2 se |

/

3

executed in 1951, is set forth in detail in the opinion

of court of appeals (Pet: App. 17-24). A series of

hurricanes, culminating in a hurricane of 1947, caused °

such serious damage to the seawall along the Sound

that the financial resources of Harrison County were

. insufficient to pay for the required repairs, and -fed-

‘eral assistance was sought. At that time such as-

sistance.was available only for publicly-owned shores AL:

(Pet. App. 22). Accordingly, appropriate legislation

was enacted by the State of Mississippi and by Har-

rison Courity ‘to enable the latter to qualify for. fed-

eral assistance” (Pet. App. 21-24). This included_a

resolution. of the Board of Supervisors of Harrison

County in’ 1950 “perpetually dedicating to the public

as a public beach” the area here in question, which

was to be constructed with the requested federal aid

(Pet. App. 24).. Construction of beach pursuant ~

to the federal contract was ‘completed in 1951.

_ Thereafter, the federal government became aware

of a series of “incidents in which members. of the

general public were forcibly denied the use and en-

joyment of the beach,” in violation of the County’s

dedication of the beach and.contrary to the 1951

contract. with the United States (Pet. App: 24). The.

United States instituted this syit in 1960 to enforce.

‘the provision of its contract’ requiring -maintenance

of the beach as a public beach. The district court (W. |

1 The record discloses that the “incidents” constituted a sys-

tematic exclusion of Negroes from the beach. Convictions of a

- group of 41 such Negroes for trespass were summarily re-

versed by this Court in 1966. . vasa et al. v. City of Biloxi,

385 U.S. 370.

ar °

4

Harold Cox, J.) denied relief, primarily on the

ground that such -relief. was inconsistent with the

rights of adjacent landowners under local property

law as announced by the Supreme Court of Missis-

sippi in Harrison County, Mississippi v. Guice, 244

Miss, 95, 140 So. 2d 838, a suit which had been

‘brought by a defendant in the present case while

y the latter was pending in the district court.

, The court of appeals reversed the judgment of the .

* district court, holding that the United States was en-

titled to.enforce the County’s agreement to preserve

‘and maintain the filled lands asea public beach. The

court held that the Guice decision—in which the State

court had held that’ the adjacent landowners became

‘the owners of the beach constructed entirely from

public funds—was not controlling in the present case

because the United States was not a party in the

State litigation and the County in that case had de-

nied ens it had agreed to maintain a public beach

(Pet. App. 26-27).° The court also noted that the de-

cision in Guice was inconsistent with Section 95 of .

the Mississippi Constitution, which provides that

“Lands belonging to, or under the control of the

state, shall never be donated directly or indirectly, to

private corporations or individuals” (Pet, App. 27 ).

The court concluded (Pét. App. 28):

We thus have no doubt that the State, in obe-.

dience to this constitutional mandate, unshackled’

*by the common law, had full authority to enact

Chapter 334 of the Laws of 1948, and pursuant

thereto the Board of Supervisors had full au-

- thority to contract as it- did ‘with the United

o

ee

3

5

fd

States for the acquisition of public funds and

the perpetual dedication of this beach to the use

of the general public. * * *

The court of appeals adhered to its decision on the »

petition for rehearing en banc, adding that (Pet. ~

App. 33): ?

The landowners, who were made parties to

this litigation by order of the District Court, and

their successors in title, should be permanently

enjoined from in anywise interfering with the

free public use of the said beach, subject to any

and all valid laws and police regulations of the

State of Mississippi and Harrison County. * * *

ARGUMENT

1. The first question framed by petitioners as to

the intrusion of this decision into an area of local

property law is simply not in this case. Petitioners

ignore the fact that there is a valid contract between

the United States and Harrison County, authorized

by a statute of the State of Mississippi, plus a dedi-

cation to the public of the beach constructed under

that contract, all consummated while the area in

question was beneath the waters of Mississippi Sound.

At that time, title-to the area was clearly in the

_ State, in trust for the public and not for the sole

benefit of these upland ofvhers. Money v. Wood, 152

Miss. 17, 118 So, 357; Xidis v. City of Gulfport, 221

Miss. 79, 72 So. 2d 153; Harrison County, Mississippi

v. Guice, 244 Miss. 95,'140 So. 2d 838. A State may

constitutionally dispose of such land for a public or

non-public purpose, Port of Seattle v. Oregon & W.

6 «

R.R.; 255 U.S. 56, but Mississippi limits the purposes

to public ones. Xidis v. City of Gulfport, supra. It

can hardly be questioned that the construction of the

beach under the relevant statutes, federal and State,

the dedication, and finally the contract, were entirely

for a public purpose. These factors as to dedication

of the fill te public use and the County’: obligation

under the contract were not resolved by the Supreme

Court of Mississippi in Harrison County, Mississippi

v. Guice, supra, relied on by petitioners (Pet. App.

5-11). Accordingly, the court of appeals correctly

refused to accept petitioners’ argument as to the ef-

fect of Guice as stare decisis in this case.

2. Nothing in the court of appeals’ decision is in

conflict with the Submerged Lands Act, 43 U.S.C.

1301 et seg. It has never been questioned that land

under inland navigable waters within the State of

Mississippi belongs to the State, United States v.

California, 332 U.S. 19, 30-31, and Mississippi Sound

is within this category, Louisiana v. Mississippi, 202

U.S. 1, 48. The Submerged Lands Act did not pur-

port to change this rule. As Senator Cordon, the floor

manager of the bill, explained (99 Cong. Rec. 2693),

the Act confirmed title as to inland waters, such as

Mississippi Sound, and released title as to the terri-

torial sea, i.¢., out to three miles beyond the coastline

in the case of Mississippi; the latter is not here in-

volved.

It is clear that, under the Act, neither the State,

the County, nor the upland owners obtained anything

with respect to the submerged lands under inland

waters that they did not already have. By public

7

enactments and declaration, as well as by the con-

tract, the State-owned submerged lands in this case

were dedicated to the public use as a public beach.

There is no way to construe the Act as preventing

the United States from obtaining judicial enforce-

ment of its valid contract. :

It also should be noted that Section 5 of the Act,

43 U.S.C. 1318, specifically excepted any lands filled

by the United States for its own use. The land ‘was

filled with the aid of the United States and money

from the federal treasury, and the use by the public

required in the contract is arguably a use of the

United States. The courts have frequently recognized

that the United States may accomplish its public

purpose by using its own agents, in whole or in part,

or by cooperative arrangement with public or private

interests, e.g., Berman v. Parker, 348 U.S. 26;

United States v. First Pyramid Life Insurance Co.

of America, 382 F.2d 804 (C.A. 8); United States v.

Pleasure Drive. & Park Dist. of Peoria, Ill., 314 F.2d

825 (C.A. 7); United States v. Board of Trustees,

343 F.2d 149 (C.A. 4).

8

CONCLUSION

For the foregoing reasons the petition for a writ

of certiorari should be denied.

Respectfully submitted.

ERWIN N. GRISWOLD,

Solicitor General.

SHIRO KASHIWA,

Assistant Attorney General.

S. BILLINGSLEY HILL,

EDMUND B. CLARK,

pit” bis

JANUARY, 1970.

WY oU. S. GOVERNMENT PRINTING OFFICE; 1970 374747 455