Brief of Respondents AW Lafferty and Richard L Merrick in Opposition to Petition for Writ of Certiorari — Benton County v. Lafferty (No. 429)

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INDEX:

7 ; ; PAGE

Question Presented Pte ad EE aN

Statement ’ | : 2

Reasons for Denying WTrit......-...----.------v+-ss--sc-sso-ssossseneees - 4

: Alleged Conflict ‘with This Court’s Order......... 4

. “Public Policy” eS A ee ee Se 6

: .\“Appellate Fact Finding” .:.........:....o-:000-- io

_ 4 The Petition for Certiorari Is Premature - <n 14

APPeNdix «.....a..ncsscsscsesceecnssnnsstecececcseenennneeesesnereneenneenseenes basal 20. .

_; Complaint in District IE i sieistierisndnnsstonenneigeottin’ 20

. Motion for Summary. carga in Lafferty Casé 26

Table of Cases ‘

American Constr. Co. v. Jacksonv ille, 148 U.S. 373, «. .

ROB) anccrcccccncneceenscvnnscssstscennnsesansnsansansesentllpesnsuninennseciein 15

Back v. Friden Calculating Co., -Inc., 155 F.2d 361 i.

* (6° Cir., NGG) aca qeennnccesnqennndnnsnensesnsnensnsdiabecinswensnenenennnnees 12

Clackamas ‘County, Ore. v. McKay, “et al, 219 F.2d

ATQ (195A) ncn eeennseccesscccnsescesesscnsessennsennnssennnstennnsesenssseetecs 3°

Douglas McKay, Secretary of. the Interior, and Ezra .-

Taft Benson, Secretary of Agriculture, v. Clacka-

MAS COUNLY .....-....-----cec-ceeeeeceeqeenetebecesteseeenessstneneceendecsens 4

‘ . Hamilton Brown Shoe Co. v. Wolf Bros. & Co., 240

-U. S. Bi (1915) -...... NRE eR IE ee 15

Hardt v. Heller Bros. Co., 17f F.2d 644 ¢3 Cir., 1948) 12

Home Indem. Co. of New York v. Standard Ace. Ins.

Co: of Detroit, et al, 167 F.2d 919 (9 Cir., 1948)... 12

House v. Mayo, 324 U. S. tt. | nee 15

Kuhn v. Princess Lida of Thurn & serie 119. F. 2d :

TOR (Bo Civ, UGGL) ..n.n.c-..n-nnecescecesee beecieecesneemeceeneasen aoe

Magnum v. Coty, 262 U. S.-159 (1922) ............-..-..2----+- 16

Marshall v. Baltimore & tain Railroad Co., 16 How.

SIE (TBSS) nn... ncenececececececeeeeeeeeees nnapnnnaiitantaosasienatetanany 9

ii “ INDEX (Continued)

; j PAGE

Sun Insurance Office. Limited of London v. Be-Mac

: . Transport Co., 132 F.2d 935 (8 Cir., 1942)............ — .

Toledo Scale Co., v. Computing, 261 U. S/ 399 (1923) 15

_ -Trist v. Child, 21 SN, TE, CIID iscicedensisnescscaivsnnaniavionoe & §

‘U.S. v. Munsingwear, Inc., 340 U. S. 36 (1950) 22... ° 5> &

United States v. United States Gypsum Co., 333 US. « §

364 (1948) . ae he Ee:

~ United States v.. Wholesale Oil Sa: Ine., 154 F.2d |

ERR ek -dee 12

Valdes v. Larrinaga, 233 U. S. 705, 34 S. Ct. 750.

ase diy sancKicsianapibcnpabcigui iene paneieerce vanes ageonteseonsese a

Is THE | -

| Supreme Court of the United States

October Term, - 1957

ap No. 429 | *

BENTON Cousry, OREGON, ET AL.,

"Petitioners

? v.

A. W. LaFFERTY, Ricnarp_L. Merrick, and -

RoBERT B. AnverSon, Secretary of the Treasury, ET AL. ”

—

_ BRIEF OF RESPONDENTS A. W. LAFFERTY AND

’ RICHARD L, MERRICK, IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

QUESTION PRESENTED

The question to be decided is whether the Plaintiffs be-

low, A. W. Lafferty and Richard -L. Merrick, are entitled.

to compensation for- their professional ° services out of a

part of the fund, which has been withheld in the Treas-

ury for this purpose, or whetlrer upon the unsubstantial. ©

ground that an Act of Congress of June 24, 1954, which

followed .and ‘implemented the decision. of the Court of

Appeals of April 30,.1954, intervened, the plaintiff lawyers —

- are to be deprived of all compensation for their arduous

labors on behalf of 18 Oregon counties, which resulted

in substantial benefits to the counties. . “

2 ; o

STATEMENT

The facts set forth in the’ petition dre deemed to be

insufficient to apprise this Court fully of the situation. -

By four Acts passed in 1866, 1868, 1869, and 1870 (14

Stat. 239;-15 Stat. 80; 16 Stat. 47; 16 Stat. 94), Congress

granted more than 3,000,000 acres of land in Oregon to

the Oregon and California Railroad: Company. The grant-

ing acts required sales of the lands to actual settlers in

tracts not greater than 160 acres and for prices not

exceeding $2.50 per acre. - Neer

For’ failure by the railroad to obey those Tequire- .

‘ments, Congress, by the Act of June 9, 1916° (39 Stat,

318), revested the title to all unsold lands in the United :

_btates. . nals

» By the Act of August 28, 1937 (50 Stat. 874), the re-

vested lands were directed to be administered by the

Department of the Interior “for permanent forest pro-

duction, and the timber to sold, cut, and removed ‘in ©

‘conformity with ‘the principle. of sustained yield,” 75

‘per cent of the -revenues derived therefrom. to be paid

to the eighteen Oregon counties in which the lands are

’ Jocated, and 25 per cent to the Department. of the In-

terior for administration purposes. ollie

By Proclamations issued in 1892 and 1893, the Presi-

dent established two forest reserves (now called National

Forests), and included therein 472,000 acres located within

the boundaries of the grant to the railroad company.

- As a result of a jusisdictional controversy between the

Departments of Interior and Agriculture, an agreement

was ‘reached in-1942 to, hold the money derived: from.

timber sales in a Special Account in the Treasury De-

partment until settlement of the jurisdictional dispute.

In 1952, Clackamas County, Oregon, brought an action

in the United States District Court for the District of

Columbia on its behalf and on behalf of the other seven-

teen land grant counties, who are the Petitioners in the

case at bar, to release the funds to-the counties and to

determine the jurisdictional dispute (Clackamas County

v. Douglas McKay, et al.*) That action resulted in the

opinion of the United States Court of Appeals for the

District of Columbia which is printed in Petitioners’

Appendix C herein at pages 15a to 48a, and which is

- yeferred to herein as the Clackamas County case. Re-

spondents Lafferty and Merrick were attorneys for

Clackamas County in that litigation. :

The object of Respondents Lafferty and Merrick in the

case at bar is the recovery of compensation for their suc-

cessful efforts’ in the Clackamas County ase, payable

from funds held in the Treasury pending the outcome of

this litigation (Joint (App. No. 11,844, Clackamas County _

case, page 3A et seq; No. 604, October Term, 1954, in

- this C6urt). , ste

The Solicitor General of the United States summarized

| the controversy in the Clackamas County case in his. peti- |

tion for certiorari in No. 604, October Term, 1954, in this

Court, as follows: | oo i 4

The Oregon counties contended ... that the lands in

- question should be considered “O & C” lands. In

$939, the. Department of the Interior changed its

earlier view and adopted the position of the Oregon.

counties. Hearings H. Committee on. Public Lands,

H. R. 1688 and S. 275, 78th Congress, 1st and 2d

sessions (1943-1944), pp. 227-229. Because of the

* tn \this Brief in opposition to the petition for ‘certiorari, the

* case entitled A. W. Lafferty and Richard L. Merrick Vv. George M.

Humphrey, Secretary of the'Treasury, et al.; and Benton County,

et al., No. 2561-54 in the District Court; No. 13,353 in the

Appeals; and No. 429 in this Court, which is the case

lis, for convenience, referred to the Lafferty case. The

case of |\Clackamas County, Oregon, v. McKay, Secretary of <4€

Interior, et al., No. 5258-52 in the District Court; No. 11,844 in

the Court of Appeals; and No. 604, October Term, 1954, in this

Court, is similarly referred to as the Clackamas County case. —

: | - 4

id 5 . ‘

serious dispute which developed between’ the Depart-

ment of Agriculture and the Department of the In-

terior as to which of the two statutes goverhed the

distribution of the proceeds from timber sales from -_

the lands, the suspense account involved in this _liti-

gation was established, Congress being advised of. it.

Ibid., pp. 247-248, 387.2 During the course of .the

controversy the Attorney General considefed the mat-

ter over a period of many years. in eonnection with

some 15 bills introduced on the subject.

-REASONS FOR DENYING WRIT

The Petitioners in, their petition to this Court for a-

--writ of certiorari give three reasons for the issuance of

the writ. . |

In: this brief in opposition to the petition each of

these three reasons will be separately discussed. -

“1, Alleged Conflict with This Court’s Qrder.

The first reason assigned by Petitoners for granting

the writ of certiorari is: saa Saar

(1) The judgment of the Circuit Court of Appeals

is in conflict with tle order of this Court of April °

18, 1955 (349 U.S. 909). ee

The order of this. Court to which Petitioners refer is

the Per Curiam order ‘entered April 18, 1955, in the case

of Douglas McKay, Secretary of the Interior, and Ezra

Tujt Benson, Secretary of Agriculture, Petitioners v.

Clackamas County, Oregon, No. 604,.which reads as: fol-

lows: = F y ee

2 The full history of the controversy is set out in the legisla-

tive history of many bills on the subject. See, e.g., 2 Hearings.

-S. Committee on Public Lands and Surveys, S. 275, 78th Con-

gress, Ist session (1943), (including Qeports by the Department of

the Interiur and Department of Agriculture (ibid., pp. 119-178));

Hearings, H. Committee on Public Lands, H. R. 1€88 and S. 275,

78th Congress, Ist and 2nd sessions (1943-1944). eo inn

. : e 5 cs,

The petition for writ of certiorari.is granted. The

judgment of the Court of Appeals is vacated and the

ease is remanded to the District Court with in-

structions to dismiss the proceeding upon.the ground

that the cause: is moot. .*

The foregoing order ofthis Court was entered in re-

sponse to a Petition fora Writ -of Certiorari filed -by

Solicitor General Sobeloff which concludes wifh this para-

> graph:

4. Though this Court has made clear. that anticipa-—

tion of future difficulties does not preserve the ©

‘ticiable quality of a case which has been rendered

~ moot (Commercial Cable Co.-v. Burleson, 250 U.S. on

-360, 362), to allay any apprehension which .respond-

ent may have, we suggest that the-judgment of the — 3

-eourt of appeals should be-reversed or vacated ant.

the case remanded for dismissal as moot without

rejudice to the rights of the respondent in the

uture with respect to any actual ‘issue which may.

possibly develop’ under ‘the present law (Citing. .

cases]; A grant of ‘certiorari accompanied by a re-~

versal. or vacating of the judgment of the Court of .:

Appeals .and a remand of the cause to. the district

-eourt with directions to, vacate the order appealed -

from and to dismiss the proceeding as moot would

be an apprdriate disposition of the case [Citing

* eases]. yk ! "

2 4 Qe °

It was unnecessary for this Court, in its order of April .

- 18, 3955, to. state that-the case was to be dismissed “with-

out prejudice to the rights of the respondent” because

such=was the well settled legal effect of its order.

In U. S. v. Munsingwear, Inc., 340 Us S. 36 (1950),

cited by Petitioners, this Court held that in a case where

the judgment was not & cated, the unvacated. judgment

operated as res judicata, but this Court ‘pointed out that |

in a case°’where a judgment is-vacated for mootness, the ¢

result is entirely different: This Court said: — ,

ae ee ae: eee

The ‘established practice of the Court in d-aline with |.

- a civil case from a court in the federal system which .

has become moot while on.its way here or pending,

our decision on the merits is to reverse or vacate

| ey 6 AS

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the judgment below and. remand with’ a direction to

dismiss. That was said in Duke Power Co. v. Green...

wood County, 299 U. 8S. 259, 267, 57 S. Ct. 202, 208,

81 L. Ed, 178, to be “the duty of the appellate court”. ”

That procedure clears the path for future relitiga-

tion of the issues between the parties and eliminates

a judgment, review of which was prevented th

happenstance. When that procedure is followed, the —

‘ rights of all parties are preserved ; none is prejudiced

. by'a decision which in the-statatory scheme Was only

. —prehminary. ~ eee oe 3

In the Clackamas County case, No. 604, this-Court did

not -reverse the opinion of the Court of Appeals. It

vacated the judgment of the court below on the ground

of mootness and, in effect, decided only that the Statute

of June 24,1954, related to substantially the same subject ©

_ matter considered by the Court of Appeals in its opinion

of April 30, 1954, and that, therefore, there was no

longer any actual controversy between the parties. :

f> 4

tn?"

The very. purpose of this procedure, as this Court

pointed out in its opinion in the Munsmgwear case is “to

‘prevent a judgment, unreviewable because of mootness,

from spawning any legal consequences.”

_ If, under the procedure followéd by ‘this Court in the

- . Clackamas County case, “the rights of all parties are’

_ preserved” and “none is prejudiced” as between the par-

"ties to that litigation, it must be true, as betweén differ-

ent parties to different titipation over different issues

that no “legal consequences” result from the prior liti-

_ gation, and that there is no conflict between the litiga-

tion in the Clackanias County case and this case _

2. “Public Policy”

The ‘second reason assigned by Petitioners for grant-

ing the writ of certiorari is: :

“2. A federal court’s award of attorney's fees out of

" , public monies appropriated for a specific purpose, for -

siieaiiiines the passage of Die Jegislation raises such

grave questions of public policy as to call for review by

this Court.” i.

It is the obvious purpose of Petitioners to bring them- ..

selves under that portion of Rule 19(1)(b) of. the Re-

. vised Rules’-of this Court. which provides that one of

the reasons for granting review on writ of. certiorari

_.,which. will be considered by the Court is-“Where a court.

of appeals . . has decided an’ iinportant-questionof fed-

eral law. which has not been, but should be, settled- by

this Court;

siiadeies submit that there j is-in this case no ques-

tion as to the validity or construction of the Constitu-

tion or any law of the United States and that there is

dn the case no question of federal law, but, on the con-

trary, the question decided by the court-of appeals .was-

an ordinary common law question not within the criteria

laid down by this Court Leal granting the writ of cer-

-tiorari.

Under the caption (page 14 of Petitioners’ petition),

“The Award Offends Public Policy,” Petitioners argue

that the recovery of a fee by plaintiffs is. so repugnant

. to public policy that it should be laid down, as a matter

of law, that they cannot recover any compensation in-any

amount. for the services: which they admittedly rendered.

_ In.order to perceive the full import of Petitioners’

argument it is essential to keep in mind.a few elemental

facts in this case:

‘The Clackamas ‘County case Was a ae sttion hoseat

by Plaintiffs as attorneys in the name of Clagkamas

County for the benefit of all similarly cireumstanced eigh-

teen Oregon land grant counties. The action resulted in

. a decision of the United States Court of Appeals for the’

District .of Columbia Circuit, which compelled the dis-

tribution to all eighteen counties of 75% of a fund in

the custody of the Secretary of the Treasury. After the

rendition of this ‘opinion of the Court of Appeals, the

‘Congress enacted into statutory form .the substance of

' the opinion’ of the Court of Appeals relating to the |

- status of the-land .and distribution of the impounded

- funds. The only evidence that plaintiffs took any action

whatsoever with reference to this statute is the statement

in an affidavit: filed by Lafferty; one of the Plaintiffs, that

among other services rendered by him, he appeared be-—

fore’.a committee expt Congress. ( See statement ‘on page

16 of Petitioners petition.) The Federal Regulation of

Lobbying Act (2 U.S.C. Nos. 261- 270), which regulates

lobbying, expressly exempts .appearances. before cotn-

mitters of Congress from the operation of the Act. Sec-

tion 267(a) states that the Act does. “not apply to any

person who merely appears before a committee : of. the

Congress of the United States in support of or opposition

to legislation.”

In Trist v. Child, 21 Wall. 441, cisea by Petitioners, a

- & contract which, contemplated certain lobbying activity,

which* this Court deemed improper, was held to be in-

valid. But this Court was careful to point wut that an

agreement -for purely professional ‘services would lave

been. ‘valid. The Court said:

We entertain no doubt that in such cases, as under”.

all other cifeumstances, an agreement express or

implied for purely professional services: is- valid.

“Within this category sem ineluded: drafting the peti-

tion to set forth “the claim, attending to the taking of.

testimony, collecting facts, preparing arguments, ‘and

submitting them. orally or in writing, fo a commnittee

or other proper authority, and other sere ices of. like

character. (Emphasis - supplied)

Thus. does the Supreme Court draw a clear line be-

tween contracts for services which are nye ae those

gd are. void, Valdes ¥. Larrinaga, 233 iv s. 700, 3d

. Ct. 750. be ‘

. The Petitioners also cite Marshall v. Baltim: ore & Ohio

Railroad Co., 16 How. 314.~-In Marshall, the Court was

careful to make a distinction ‘between improper actions

such as it condemned and proper professional activity in

~ connection with proposed legislation. The’ court said:

All persons whose interests may in any way be af-

fected by any public or private act of the Legislature

- have an undoubted right to urge their claims and

arguments, either in person or by counsel professing.

to ‘act for them, before legislative committees, as well”

* as im courts of Justice. (Emphasis, supplied)

In the case at bar, respgndénts’are lawyers who were

employed .by Clackamas (’ ounty, \Oregon, to,undertake im- //

portant professional ‘employ rent \for the benefit of. all the’ e

jJand grant counties of Oregon. This they carried out,

with a high degree of skill, and with signal success. To

say that there was anything improper, or against public

policy, in “their employment or: in their conduct, is. to

make a gratuitous attack upon two members of the bar.

of this court, without a scintilla of evidence to-support. it.

. “Appellate Fact Finding” |

The third reason assigned | by the Phtitionérs for grant-

ing the writ of certiorari is: |

. (3) The factual dekeeinlaintion on an appellate level

of a ‘causal connection’ between the Clackamas litiga-

tion and subsequent favor legislation so far departs

from the accepted judicial. standards as .to call for

an €xercise of this.Court’s supervisory jurisdiction.

_ It is the obvious purpose cf Petitioners to bring them-

_ selves under that portion.of Rule 19(1)(b) of ‘the Re-

vised Rules of this Court which provides that one of the.

reasons for granting. review on writ of certiorari which °

“will be considered by’ this Court is \

Where a court of appeals ... has 'so far departed ,

_-from the accepted and usual course of judicial pro-

one

2: | . \10

ceedings, or so far sanctioned ‘such a departure by a we

_lower court, as to call for.an exercise of this court’s:

power of supervision. is

Respondents submit that there was in fact. no departure *

from the usual course of judicial proceedings ; that, on

- the contrary, the action of the Court of Appeals was in

complete ‘accord with the usually accepted course of the 7

judicial process.” ae ‘ ae

\ ; ° :

_ The Plaintiffs, Lafferty and Merrick, brought an action

in the United States’ District Court for- the District of

Columbia against the Secretary of thet Treasury, the

Secretary of the, Interior, the Secretary of Agriculture. -

and eighteen counties: in the State of Oregon to re-

cover compensation for legal services rendered \to the

counties. — | a Ry ie @ ee

The Secretary of the Treasury was joined only \be- —

cause he was the stakeholder of a fund belonging to the

counties out of which Plaintiffs were to be paid if they

recovered g judgment against the counties; the Secretary

of the Interior and the Secretary of Agriculture were

joined only that they might be enjoined from interfering.

with such payments. The three Secretaries had no in- |

terest in and took no position as. to the merits of the

controversy between Plaintiffs and the counties, as was

-*plainly stated by the trial judge in his final-order where- .

in he said: |

_.. and it appearing to the Court that defendants,

George M. Humphrey, Secretary of the Treasury;

Douglas McKay, Secretary of the Interior; and Ezra ©

Taft Benson, Secretary of Agriculture, take no posi-

tion on the merits between the plaintiffs: and ‘the ~

seventéen counties heretofore named .. a.

_ Thus, the action brought by Plaintiffs, was in*essence-

- a suit, by lawyers against the counties to recover fees for

services rendered, and nothing more. . PRS Oe

Se |

_ The final order of the trial judge denied plaintiffs’

motion for summary judgment, granted the motion: of

the seventeen counties for summary judgment, and or- .

dered that judgment-be entered in favor of the defend-

ants and against : the Plaintiffs.

The case was submitted to the trial judgé wholly on

written documents, consisting of the pleadings -and- two

. affidavits of the Plaintiffs and other affidavits filed by

- Plaintiffs in support of their position. No witnesses

‘were produced by any party and no oral testimony was —

taken. In the District’ Court, the Respondents ‘moved

‘for summary judgment “on ‘the ground that all. genuine

material - issues of fact are matters of judicial notice.”

. The facts before the trial. judge were not in dispute.

As he stated in his Memorandum:

. all parties saree that there is no genuine issue

of material fact .

With all the primary facts in the- naan upon,» <

' the question before the trial judge became one of ultimate

inference as to whether, on the basis of the undisputed

facts, the Plaintiffs court recover a fee in some amount.

The order of the trial judge to enter judginent in favor of

the defendants and against the Plaintiffs was in effect a-

’. decision that, as a matter of law, the Plaintiffs could not

recover any fee in any amount for the substantial legal

services which, as a matter = admitted fact, they had

rendered. ) °

There had been amen ‘in: the: trial court whose é

candor and credibility ‘the trial judge had had opportunity:

to observe. ‘The. pertinent documents which had been

before the trial.court were also before the Court of Ap-

peals. The Court of Appeals was in as good a position

as the trial court to draw a proper inference from these

‘documents. The Court of Appeals, consisting of three

‘judges, unanimously Wecided that the triat judge had

\ . 6 dl 3

a oe oe ma os

drawn an erroneous inférence from the docurfients and

reversed his judginent and remanded the case for further

proceedings not inconsistent with the appellate court's

opinjon. - )

There is in this « case no ground. for granting . the writ

of certiorari on the basis of the. importance of the ques-

tion involvéd. The question as -to whether lawyers are

to ‘recover a fee for legal services rendered and. the a

amount of such fee is admittedly an ordinary common %&

law question, far removed from 4 federal question involv-_-

ing the tonstruction: of the federal Constitution’ or a’

federal - law. The isspe presented for decision: in. this -

case is in the -categor of run-of-the-mill litigation essen- .

’ tially local in character. This Court .would not be Justi-

fied in taking jurisdiction' on certiorari unless there is |

presented some* procedural question of. great importance. |

There is in ‘this’ case - no procedural question of im-

‘portance. | The action of:sthe court of appeals in review-

ing and passing upon the ultimate legal inference drawn |

by: the*trial court from an undisputed state of facts was

only an example of the ustial: and customary exercise of

the appellate jurisdiction of the courts of appeal. It .is’

. ‘in no-respect a departure from the accepted . and. usual

course of judicial Proceedings, as. is shown by many re-

"ported cases. Sun dusurance Office Limited of London v.

- Be.Mac Transport €o., 132..F.2d 535; United States v.

Wholesale Oil Co., Ine., 154 F.2d.745; Back vy. Friden

Calculating Co., Inc, 155 F.2d 361; Home Indemnity Co.

of New York v. Standard Acc. Ins. Co. of Detroit, et al,,

167. F.2d 919; Hardt v. Heller Bros. Co., 171 F. 2d 704;

Kuan v. Pritcess Lida of ‘Thura dé Tazis, 119 F.2d 704;

‘United States v. Unitéd States Gypsim Co., 333 U.S. 364.

In Kuhn v. Pripctes Lida of. Thurn € Taris, 119 F,

od 704 (1941), the plaintiff, an-attorney, sued the de- ~

fendant for the recovery of compensation for professional

_ services. The case was tried to the court without - a

a Po oe

jury. The question involved an. appeal was Whether the “a

trial court erred in the amount at which it fixed the plain- .

tiff’s eqmpensation.* The Circuit Coyrt of Appeals, “Third

Cireuit, said? sy re a eo

The rule does not operate, however, to entrench withe

like finality the inferences or conclusions drawn by ical

‘ the trial court from its fact findings. And so, while ,

- accepting the facts competently found. by the trial «—

' court as correct, an appellate court remains free to |

, ‘draw the ultimate inferences and conclusions which, -

- in its opinion, bea, mye reasonably induce. Such —

was the law prior to the promulgation of the Rules ~

of Civil Procedure:. Brown v. United States,.3 Cir.,

95-F.2d 487, 490; Dunn v. Trefry, 1-Cir., 260 F. 147,

-148. The new Rules have’ worked no change in this

regard, or with respect to the ulti@ete conclusions in .

_ jury-waived cases in particular, §

In. Pnited States v. United States Gypsum "Co. 333

U. S.“ 364 (1948), this: Court had before it.a factya] sit- -

Giation similar, on the question here involved, to the

factual situation in the case at‘bar. = .

In explanation of its action in ‘overturning ‘the finding -

of the trial court and substituting its own. oppesite con-

clusion, this Court (pages. 394 and 395) said: |

/ In so far as this finding [Finding 118] and ‘others

* to which we shall refer are inferences drawn from -

5 documents" or undisputed facts, heretofore described

‘or sét out, Rule 52(a) of@the Rules of Civil Proce-

' dure is applicable. That rule prescribes that findings |

of fact. in actions tried without a jury, “shall not. be,

«get. aside unless clearly errongous, and due regard

“shall be given to the opportuHity of the ‘trial court

to judge of: the credibility of the witnesses.” It was.

intended, in all actions tried upoh the facts without.

-_ jury, to make applicable the then prevailing equity

| meng [Citing cases]. S§Sin¢e judicial’ review of.

ndings of trial courts does not have the statutory

or-constitutiénal limitations ‘of findings by adnfinis- | —

{rative agencies [Citing cases] or*by a jury,’[Citing

eases} this Court may reverse findings of fact by a

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trial court where “clearly erroneous.” The practice

- in equity prior to the present Rules of Civil’ Proce-

dure was that the‘findings of the trial court, when

dependent upon oral testimony where the candor 4

credibility of the witnesses would best be judged, .

had great weight with the-appellate court. The ie

ings were never. conclusive, however [Citing cases].

A finding is “clearly erroneous” when although there

is evidence to Support it, the reviewing court on the

entire evidence is.left with the definite and firm con-

- viction that a-~-mistake” has been senaee. _ (Em-

phasis supplied)

This case is a stronger case in. support of the proper

power of the appellate court to review and: pass. upon the

action of the.trial court than the Gypsum case because in-

_ the Gypsum ease the trial court had the opportunity’ to

observe and appraise the candor and credibility of the

witnesses, which opportunity was necessarily. denied to

this Court, because jn this ease there were no. witnesses

and no oral testimony. ‘e he

The action of the Court of Appeals in this case is in

conformity with the. prevailing practice in eourts of ap-

peal in otheXt Cireuits, and is approved’ by the rule laid

down in ica 8 by this Court.

- 4. The Petition for Certiorari is premature, because there

has been no final\ judgment in this case. -' ‘

The Court of Atppeals remanded this case to the Dis-

tTict Court te hear evidehce on the extent and value ‘of

the services of .the Respond it lawyers. There has been

no final . judgment in- the court, below. The Petitioners

seek a writ. of certiorari to review, the interlocutory ac-

‘tion of the Court’ of Appeals. The power of the court to’

review interlocutory judgments is to be éxercised only in

“extraordinary cases,” and the fact that judgment

sought to be reviewed is not final may, of itsel?s urnish

_ sufficient ground for the denial of the application. “She |

. @rit does not issue. to review an interlocutory judgment ~

of the Circuit. Court of Appeals “unléss it is necessary. to

‘ : ew metss |

"prevent extraordinary inconvenience and embarrassment

‘in the conduct of the cause.’ American Constr. Co. v.

Jacksonville, 148 U..§. .372 (1893). va 83

In Hamilton-Brown Shoe Co. v. Walf, 240 U. Ss. ae

(1915), the plaintiff’s bill for trade mark infringement

was dismissed by the trial court. The court of appeals

reversed -ard. remanded for an accounting. The Su- .

+preme “Court denied certiorari. After final judgment,

the Supreme Court granted certiorari, and in its decision,

referring | to writs of certiorari, this court said: *

As has-been many times declared, this is-a jurig@-

tion to ‘be exercised sparingly, and only in eases of ©

peculiar gravity and general importance, or in order

to secure uniformity of decision. {Citing cases

, And, except” in extraordinary cases, the writ is not

" issued until final decree [Citing cases]. The decree .

. that was-sought to be reviewed by certiorari at com-

plainant’s instance Was not a. final one, a fact that |

of itself .alone furnished suffic ient ground for the

denial of the application; . . —

‘The case at bar is a lawsuit, brought by two lawyers |

to recover a fee for services which they admittedly ren-

dered, an action which“is in no sense “special and im- .’

; ‘portant. ” This case, at this stage. certainly, should not

—oecupy the time, the thought, and the attention of thie

_ highest court.in the land.

A There denial of the writ to an interlocutory ruling

of the. Circuit Court of Appeals does not limit the court's

power to review the whole case when ft is brought, here

by certiorari on final judgment, Tolédo Scale-Co. v. Com-

puting; 961 U. S. 399 (1923). The interloe utory action

becomes merged into the final judgment and is open to

review by certiorari, Hamiion Brown v. Wolf, supra. In

such a case, the first denial of the writ of cerfiorar: jm.

ports no a of ompies ion upon the merits of the

ease, House vy. Mayo, 324 U.S. 45 (1945).

wi »

As said vy Mr: Chief Justice Taft in Magnum v. Coty, |

262 U. S. 159 (1922), the writ of certiorari is designed

“to. bring up cases involving questions of importance

which it is in the public interest to have decided by this

court of: last resort. - This jurisdiction was not conferred

upon this court merely to give the defeated party: in

the Circuit Court of Appeals -another hearing.”* .

It is a fair assumption that in the event of an adverse

final judgment in the courts below, the petitioners will

be here -again with a second <fetition for certiorari.

This case involves no federal’ question and no conflict

between the Courts of Appeal. Surely the courts below

are competent to decide all that is involved in this case,

viz: (1) whether two lawyers are entitled to a fee for

their. services, and (2) if so, to ux the amount. If there

is to be @ review on. certiorari in this Court, it should

be after final judgment. — y |

‘ Reply to Memorandum of the Respondent

Bote <a Cie Government Officials

In the: Memorandum filed in this case by the Solicitor

General on behalf of the Respondent Goverment officials,

it is said that a question is raised in this Court as -to.

_ .*The report of the Senate J udiciary Committee, recommending

the passage of the Act of February 3, 1925 (43 Stat. 936), said:

“The central thought is this, that litigants have, first, a trial in

the district court, and then by appeal or writ of error, a trial

in the Circuit Court of Appeals—a court that ranks as high or

higher than the supreme tribunals of the states. It is our belief _.

that here ordinary’ litigation should end, and that the cases

should not go to the Supreme Court of the United States unless ©

the questions involved are of grave’ public concern, or unless

serious uncertainty attends the decision of the Circuit Court of

Appeals ‘by reason‘of conftict in the rulings in these courts o the

courts of the states.” Quoted in Stamey v. United. States, 37\F.2d

188. ~

& . 17 .

whats the District Court: hed jurisdiction over the coun-

ties, and it is stated that although the question * ‘was

raised in the Court of Appeals, the opinion is silent on

the subject.”

The Court of Appeals in its opinion is silent on the ~

_ subject because no such issue was.before it. The Govern-

ment had‘ frankly admitted. that the seventeen defendant

counties made a general appearance in the. District C: rt

and that there had been “a waiver and abandonment of

the jurisdictional defense” by them.

In the “Memorandum for George M.’ Humphrey, Sec-

‘retary of the Treasury, Douglas McKay, Secretary of the

Interior, and Ezra Taft Benson, Secretary of Agriculture,

Petitioners” fled in this case (No. 13,353) in the United

States Court of Appeals for the District of Columbia -.

Cireuit by Assistant Attorney Genéral Perry W. Morton

- and Roger P. Marquis and Harold S. Harrison, -Attor-

_neys in the Department of Justiee, under the caption

“Statement of Position,” it is stated:

1. On the merits of this dispate the appetion gov-

ernment officials are neutral. They neither affirm, nor

deny that thé appellants are entitled to an attorneys’

‘fee payable out of the fund now in the Treasury. It

- is conceded that approximately $600,000 of the.

amount retained in the special fund is due and ow-

_ ing to the appellee Oregon counties and to Clacka-

‘mas County. This fund has bern retaine ‘d only be-

cause of this. litigation. In these circumstances, df

this Court firfds that:a valid lien for attorneys’. fees

exists; that all parties will be bound by the decree;

“and that it will be “e full aequitance to thexUnited

States for any and aT claims. and demands of the”

_ parties: arising out of or connected with said claim”.

(Houston 5 ormes, 220 a. . 472 (1920): “Mellon

v. Orinoco Tron, Co, Dit Us. 12], 125-121 .(1924)).

appellee government officials wall not he prejudiced

by a decree directing such payment,

2. It is believéd that a jurisdictional matter should

- be invited to the attention of the Court. As spelled

out in Houston v. Ormes, 252 U.S. 469, 472: (1920),

_ before a mandatory order could be entered directing

the named government officials to pay a part of the-

fund to the plaintiffs, the United States would have

to have a proper acquittance against the. counties.

In other words, before the relief demanded. in the

_ appellants’ complaint could be granted it must be

found that. the court has jurisdiction over the ap-

llee counties. Absent such a finding, no relief can

he granted against the remaining defendants. Pilger

‘vy, Sutherland, 61 App. D. C. 84, 87, 57 F.2d 604, 607

_ (1932), quoted with approval in Morgenthau&. Fi-

delity and-Deposit Co. of Maryland, 68 App. D.C.

163,165, 94 F. 2d 632, 634 (1987).

_ In the answer filed on behalf of the appellee officials o

this issue was raised in order to obtain a specific

adjudication that service either was or was not prop-

erly effected on the nonresident counties (Jt. App.

12). The seventeen counties answered, raising as

their first defense a jurisdictional claim (Jt. App.

7). Stibsequent. to that time, however, they filed a

motion for summary judgment in which they sought

an adjudication solely on the merits (Jt. App. 14).

In addition, they did not raise the jurisdictional issue

in their opposition to appellants’ cross motion for

- summary: judgment in the court below. This pro- .

cedure we take to ‘be a general appearance. and a

waiver or abandonment_of the jurisdictional defense. °

‘(Emphasis supplied) in these circumstances, any

' question of the court’s jurisdiction may now be out

of the case so that the only issues relate to the

merits. Howevé?, as previously noted, it would re-

quire a conclusion that there_is jurisdiction over ‘all

of the defendants before relief in the nature of man-

damus could’ be granted.

The foregoing statement made by the Government law-

‘ers in the previous Memorandum which they filed in the

Yourt of Appeals is a complete refutation of the Memo-

andum which they have just filed if this Court. There

‘ -t

is in the case no question as to the jurisdiction of the.

District Court over the seventeen defendant counties.

pense atid submitted,

~ James P. Kem

1625 K Street, N. W.

Washingteh 6, D. C.

| —os Lafferty and Merrick

_ Byron N. Scott )

Wyatt Building

Washington 5,.D. C.

Monte APPEL ~

~ 1625 K Street, N. W. .

Washington 6, D. C. .

Donato C. WaLKER

911 Portland Trust Building

Portland 4, Oregon

Of Counsel

APPENDIX

IN THE UNITED STATES DISTRICT COURT FOR

THE DISTRET OF COLUMBIA ~

Civil Diviston

Civil Action No. 9501-54

1. [Filed June 15, 1954] Bee ee

A. W.. Larrerty, Fenton Building, Portland, 4, Oregon, °

and Ricuarp L. Merrick, 1624 Eye 5St., .W, Ww ash-*

— 6, D. C., PL IFFS) Sled

GORGE M. Humpurey, Secretary of the Treasury, WwW wih

‘ington, D. C., Doveras McKay, Secretary of the In-

- terior, W ashington, D. C., Ezra Tarr Benson, Secretary.

of Agriculture, Washington, D. C., Benton County,

Corvallis, Oregon, CLackamMas Cov srt, Oregon - City,

_ County, Coquille, Oregon, CURRY Cotsry, Gold Beach,

Oregon, Dovctas Ceunty, Roseburg, Oregon, Jackson :

‘County, Jacksonville, Oregon, JOsEPHINE County,

Grants Pass, Oregon, KLamatu County, Klamath Falls,

Oregor; Lane County, Eugene, Oregon, LINCOLN

County, Toledo, Oregon, Lix'Ny County, Albany, Ore-

= gon, Marion County, Salem, Oregon, MeuLTNONAH |

E County, Portland, Oregon, Potk County, Dallas,

Oregon, Tittamook. County, Tillamook, Oregon, -

Wasutneton County, Hillsboro, Oregon, afd YaMHILL

County, McMinnville, _ Oregon, DEFENDANTS | =

COMPLAINT

(Action for Attorney Fees, Ete.)

‘1. Jurisdiction is based og diversity of cit.zenship, fhe

amount in controversy,. which exceeds three thousand

dollars, exclusive of interest and costs, and other grounds

as shown hereinafter.

2. Plaintiff, A. W. Lafferty, is,a resident of the City

of Portland, State of Oregon, is a duly admitted attorney

at law, and is engaged in the general practice of law in

the State of Oregon. — |

Plaintiff, Richard L. Merrick, is a resident of the State

of Maryland, is a duly admitted attorney at law, and is

‘engaged ‘in the general practice of law in the City of - .

—

a? 3

Washington, District of Columbia. ae Se

. 3. Defendant, George M. Humphrey, is Secretary of the

Treasury of the United States, and # non-resident of the

State of Oregon. - ' | oS)

Defendant, Douglas McKay, is Secretary of the Interior —

of the United States, and at present.is a non-resident of

the State of Oregon.

Defendant, Ezra Taft Benson, is Seeretary of Agri-

wulture, of the United States, and a non-resident of the _.

State of Oregon.

- Said three defendants are’ stakeholders or custodians

of funds belonging to the other defendants named herein,

as hereinafter more fully shown: -

‘Benton County, Clackamas County, Columbia County,

Coos County, Curry County, Douglas County, Jackson

- Courity, Josephine County, Klamath County, Lane County,

Lincoln County, Linn County, Marion County, Mult-

3 ‘nomah County, Polk Coufity, Tillamook County,

é Washington County, and Yamhill County’ are all

separate political subdivisions of the State of Oregon, .

and are the owners of 75 per cent of the fund held'in- °

escrow, as hereinafter more fully shown.’ -. &

4. The eighteen Oregon Counties ‘herein — as de-

- fendants are, justly indebted unto the plaintiffs for legal

services performed and rendered for their benefit, in the

Sum of $600,000.00, payable out of the fund belonging to

them now held in escrow by the defendants, George M.

| 6

®@

. Nichia hentai McKay, and Ezra Taft Benson, as

- hereinafter more fully shown.

5. Heretofore, on May, 26, 1952, , plaintiff- ‘- W. Laff.

erty, in association with the District Attorney of Clacka-

mas County, Oregon, brought an action in the U nited

States District Court for the District of Oregon, wherein

_ Clackamas County, one of the defendants herein, was

named as plaintiff, and the then Secretary of the Interior

and the then Secretary of Agriculture were named as

defendants, seeking distribution of funds held in escrow

in the United oe Treasury in a special deposit ac-

count deseri as “Deposit Fund Account 12X6875,110, »

Suspense Agri@ulture (Forest Service)”, which action was

dismissed because of improper venue on or about Novem-.

ber 19, 1°52, whereupon on November 20, 1952, the same

action was brought by plaintiff Richard L. Merrick, as

_ attorney for said Clackamas County, in the United States

District Court for the District of Columbia, said: Clack- .

_ amas County thén and there suing on its own behalf and |

named as defendants herein, said action being brought

against the same defendants as those inv ‘olved in the orig-_

inal action brought in Oregon; namely, the Secretary of

the Interior and the Secretary of Agriculture, sagking the

same relief as originally prayed for by said, Clackamas:

County., A motion to dismiss said action was sustained:

by the United States District Court ‘for -the District of

Columbia on May 20, 1953, on the ground of lack of

‘jurisdiction; and_on that date an appeal on behalf of said

Clackamas County to the United States Court of

4 .° Appeals for the District of Columbia Circuit wa~

carried to a conclusion, and thereafter said United States

Court of Appeals for the District of Columbia Circuit, in

‘a decision dated April 30, 1954, granted to--said_ Clack-

amas County all the relief prayed for in its complaint,

Re * |

230

and specifically directed the United States District Court

for the District of Columbia-to enter a judgment en-

‘joining the Secretary of Agriculture from interfering

with compliance by any other Government official _ with

_ the terms of the-Acts of Congress of June 9, 1916 (39

Stat: 218) and August 28, 1937 (50 Stat. 874), and par-

-ticularly from interfering with the distribution of the

moneys referred to above held in the escrow account

aforesaid, and from interfering with the treatment of the

lands in Oregon from which the moneys were derived as

“land revested from the railroad by the 1916 Act. of

Congress”; and directing the Secretary of the Interior to

issue authorization to the Treasurer of the United States

to distribute fhe said moneys in said escrow account in

accordance with the provisions of said Acts of Congress

of 1916 and 1937,: which provide in effect that 75 per cent

of. said funds.shall go to the eighteen. Oregon Counties _

named as defendants herein, and 25 per cent to the De-

partment of the Interior for administration’ purposes.

The said moneys now held in escrow in said account, as

‘aforesaid, aggregate $8,000,000.00, of which $6,000,000.00 .

are distributable to the eighteen Oregon Counties named

. as defendants -herein under the terms of said Acts of

Congress of 1916 and 1937, and the decision of the said

United States Court of Appeals” for the District of Co-.

lumbia Circuit. .

6. In and about the fling’ and conduct: of. said legal

actions, as aforesaid, and the prosecution’ “of said appeal

to’the United States Court of _Appeals for the District

of Columbia Circuit, as aforesaid, the plaintiffs . herein

rendered extensive and. valuable legal services for the ~

benefit and advantage and on behalf of said eigteen Ore-

gon Counties, of the reasonable value of ten per cent of

$6,000,000.00, the amount distributable to said Oregon

Counties, by reason whereof the said eighteen Oregon

Counties named as defendants herein are justly indebted

| unto 5 plaintiffs in the said sum of $600,000.00.

ae 7. After the rendition of- the decision of the

United States Court of Appeals for the District of

Columbia Cireuit-on April 30, 1954, as aforesaid, the

Congress, by reason of the activities of certain members

‘of the Oregon delegation in Congress, which activities -

. plaintiffs believe were and are designed and intended to -

supersede the judgment and determination of said United

States Court of Appeals for the District of Columbia,

and to prevent plaintiffs from ‘collecting their just fees

and compensation for their-services, as aforesaid, passed

.an Act in the Senate on May 20, 1954, and in the House

of Representatives on June 9, 1954, providing, among.

other things, for the payment of thé funds _impounded in

said es¢row account, as aforesaid, to the eighteen Oregon

‘Counties named as defendants herein in the same man-

United States Court of Appeals for the District of Co-

lumbia Circuit, which said Act is about to be approved

by the President, and said defendants, George M. Hun-

.phrey, Douglas McKay, and Ezra Taft Benson, are about .

to pay or cause to be paid out. said funds to said -coun- .

‘ties ostensibly under the provisions of’ said Act of Con-_

gress and not under the decision of the said United

States Court .of Appeals for the District of Columbia

-Cireuit, and thereby and in that manner to supersede and

nullify the- decision of said Court of Appeals, and to.

render collection by plaintiffs of just compensation for —

their services, as aforesaid, extremely difficult or im-

possible:

_ WHEREFORE, plaintiffs pray: 7

1. For judgment against the said defendants and each

and all of them for the sum of $600,000.00, besides cos ts. |

2. That the defendants, George M. Humphrey, Douglas

» McKay, and Ezra Taft Benson be directed to deposit or

cause to be deposited, in the registry of this-Court ~’

: en a : ‘ Oy

— rage ® .

\ 5 ‘. = S \

sum of $600,000.00 from the funds i in said escrow actount,

to,abide the judgment of this Court herein. \-

3. Or, in the alternative, that said defendants, George .

-M. Humphrey, Douglas McKay, and Ezra Taft Benson,

their agents, servants and attorneys, be restrained and

enjoined from paying to the defendants, the eighteen Ore-—

gon. counties named herein, the sum of. $600,000.00 pend-

ing the judgment. of this Court rein.

6 | 4. That service on the non- “resident defendants,

| the eighteen Oregon Counties, be made by publi-

vation or by substituted process having the same effect as

“publication, or-‘in such other manner: iis Sis Court ‘may

_° direct. ;

5. For such other; further or ‘Uiferent relief, as*to the

Court may seem just and proper or the nature of the

case may require. :

| /S/ A. W. Larrerrty,

| - Fenton Building, |

a , ae Portland 4, Oregon,

/S/ Ricwarp. L. Merrick,

~ 1624 ‘Eye St. NX. W.

WwW ashington 6,; 1. C:

Plaintiffs ‘pro, se.

DISTRIC T OF COLUMBIA, —

‘Richard L. Merrick, being ‘first duly sworn ‘according’

to law on oath deposes ‘and says that he is-ene of ‘the

plaintiffs in this action; that he has read the’ foregoing

complaint ‘by, him subscribed and knows. the contents

thereof, and that he verily. believes the same’ fo ‘be true.

PSS Ric HARD L. Merrick

’ Subse ribed and sworn to before me this 15th day of

June, 1994 cae) :

OS). Marianna D. WacGaman

3 Notary Public, D. C.

: 26 ae . a

| (Caption Omitted) -

oa (Filed Dee. 21, 1955]

MOTION FOR SUMMARY JUDGMENT

Come now Benton County, Columbia County, Coos

County, Curry County, Douglas County, Jackson County,

Josephine County, Klamath County, Lane County, Lincoln

County, Lynn County, Marion County, Multnomah County, -

Polk County, Tillamook’ County, Washington County and

. Yamhill @ounty, all of the State of Oregon, by their a.

_torneys, and move the Court, pursuant to Rule 56 F. R.

C..P., for summary jndgment, and for reason therefor

> say that all genuine, material issues of fact are matters

of judicial notice about which there canbe no dispute.

and that defendants should have judgment, since the plain-

tiffs’ efforts were unsuccessful in bringing about distribu-

‘tion of the fund which their litigation contemplated and

since plaintiffs were not retained by these movants, all. .

as more fully appears in the attached “Memorandum of

Points and Authorities. ;

HOGAN & HARTSON eat

By Paul R. Connolly /s/

810 Colorado a.

Washimgton 5, D.C.

Frank S. Sever /s/-

510 Corbett Building

Portland, Oregon a

Attorneys for the Oregon |

‘County Defendants,

: except Clackamas, County,

i : | Oregon. | fat /

20 (CERTIFICATE OF SERVICE)

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.