UNITED STATES v. MERZ

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Argument of Forrest L. Champion, Jr.

Chief Justice Earl Warren: Number 79, 2,872.88 Acres of Land, etcetera, et al., Petitioner, versus United States.

Mr. Champion.

Mr. Forrest L. Champion, Jr.: Mr. Chief Justice, may it please the Court.

I approach this argument with a keenly felt sense of humility, recognizing that despite any exhausting effort to study the law with respect to the issues involved in this case, one can never know it all and while I may seem categorical or firm in my position, nevertheless, I recognize the right to a difference of opinion and a difference in the construction of the rules.

I approach it also with a keenly felt sense of pride that this Court considered the issues involved in our petition for certiorari of sufficient import to justify its consideration.Most cases are decided upon their facts but this case is different.

It depends, we submit, upon the interpretation of the federal rules of civil procedure and we respectfully submit the integrity of the federal rules of civil procedure are at stake particularly, Rules 46, 51, 52, 53 7 -- and 71A (h).

The last three rules are specifically involved.

Rules 46, 51 and 61, I omitted to state that one, are incidentally involved if we construe the rules together, following the analogy of the doctrine of pari materia.

As we see it, the Federal Rules of Civil Procedure were -- were a tremendous advance in the promotion of the expeditious trial of cases upon their merits.

And that's the reason why we say that Rules 46, 51 and 61 are involved -- incidentally involved because they reflect the rationale behind the rules.

It is a maxim of the common law that -- that which I can't quote for Latin but I can say that it is a maxim that is well-recognized and that is, it is in the interest of the public that there'd be an end to litigation.

In other words, the person is entitled to a trial in court of fair trial of his issues but he is not entitled to continue to carry on litigation when he has an opportunity to make exceptions and apprise the trial court of the position which he takes.

The law requires -- due process requires that he let the trial court know with the first opportune time, what position he takes with respect to a particular matter, so that the trial court can determine the merit of his position and that has particular application here because under Rule 53 (e) (2), the objector to the findings of fact, may file objections.

And the only difference in our position between the Government and us is this.

We maintain that those objections must be specific.

The Government agrees that while Rule 53 (e) (2) reads may and seems to be permissive that it is in fact, mandatory.

We think that the better reason authority support that means.

Our only difference in opinion or position is that they say, it may -- the objections maybe general, we say they must be specific.

They must be sufficiently specific to apprise the trial court of the position taken at that time, so that the trial court, if it deems the findings of fact inadequate in any particular respect, can immediately remand it and the Commission can make findings of fact and then the trial court can review the Commission's findings in the light of the additional findings of fact.

We say the findings of fact in this case are so utterly general as to raise no question for review and that question is tremendously important.

That, however, is a procedural question under Rule 53.

The other question that is involved is what is a fact under Rule 52?

The Government takes the position that it is necessary in making a finding of fact that a master state what evidence he credited and what evidence he dis -- discredited.

And the Fifth Circuit went along with that position.

Indeed, that is the crux of the Fifth Circuit's opinion.

Even though at the same term of court, the Fifth Circuit rendered a -- a decision which reads to our way of thinking that altogether differently, cannot be reconciled.

It is our opinion that it cannot be reconciled and I -- I don't want to be inaccurate in this respect and I -- I therefore, ask the Court's leave to quote it, in order that I might be accurate.

It's a very short quotation and since it was decided by the Fifth Circuit at the same term of court and is so utterly inconsistent with the position taken in this decision appeal from that I read, "Where the only issue on appeal was one of fact and the reviewing court could not determine that the judgment of the trial court approving the findings of a special master were clearly erroneous, judgment would be affirmed."

That, we submit to you cannot be reconciled with the decision in the instant case.

But yet, aside from that, there were numerous other decisions of the Fifth Circuit Court of Appeals already existent at the time this appeal was held, which decisions the -- the Fifth Circuit in this opinion, studiously avoid, for instance, they studiously avoided the decision of the Fifth Circuit in U.S. versus Tampa Bay Garden of condemnation case, wherein this -- the Fifth Circuit had previously held, we do not think it necessary that we require, in applying the clearly erroneous doctrine, a special finding of fact with reference to each evidentiary conflict in the record.

Now, taking the Government's position to its logical extreme, it would mean that a master would have to take each witness and take each bit of testimony to which he testified and make a finding with reference to that and say, "I believe this, I disbelieve this, I believe this 50%."

And the logical extreme, we submit, reduces Rule 53 (e) (2) and Rule 71A (h) to an absurdity, destroys the utility of commissions.

And whether we like the commissions or not, it is a part whether the Court likes commissions or not, whether a litigant likes the commissions or not, it is part of our federal rule.

And there is in fact, no distinction between a finding -- a report by a master, adopted by the trial judge and a jury verdict.

In a distinction, we submit, particularly as applied to this case, is one without a difference because if the Court will look at the extensive instructions to the Commission in this case, commencing at page 18, outlining all of the basic principles of law to the Commission and even instructing the Commission that if they desired any further instructions with reference to any question that might come up before them, they could apply for -- further instructions.

There were no exceptions to these instructions by the Government.

There were no exceptions to the reference to a commission by the Government, in fact, both parties asked for a jury trial in the first instance.

And I respect -- respectfully submit to the Court that the question of reference to a commission was not involved in the case at all, even though the opinion of the Fifth Circuit laid us tremendously to try to justify its opinion, referring to its prosecutors against the use of a commission in a condemnation case and it was not involved.

Again, the opinion seeks to assert, impliedly asserts that a master must find qualifications of witnesses.

Now, we respectfully submit that qualification of witnesses is not a fact.

It is a preliminary question addressed to the fact finder.

One other thing that we would like to -- for this Court to clearly understand and that is this, these -- these commissions are not just referred -- they're just not picked out of thin air, they were -- they were referred to as this -- the order appointing the Commission in this case, shows they were referred to people of -- of tremendous ability that -- the -- the order of the reference says that he is an experienced attorney talking about the Chairman of the Commission.

He was in fact, a retired superior court judge, a professor of law at Mercy University.

The other man -- one of the other men that constituted the member of the Commission was a real estate appraiser from Columbus, Georgia and the other member of the Commission was a gentleman from Albany, Georgia that was widely familiar with land values in this particular vicinity.

So we maintain, respectfully, that once the trial court affirms the findings of a master, that it has the same dignity as a jury verdict.

But now, let's go further.

Look at the reports of the Commission made in this -- this case, in all three cases.

Indeed, the report of the Commissioners in the Lindsay case is found at page 32.

What findings were made?

They first determined the highest and best use of the land.

They next determined that he was not entitled to severance damage to his home place which was located some 5 miles from the property that was condemned.

They determined the value of the land taken in fee.

They determined the value of the (Inaudible) upon the land not taken.

They determined severance damage to the land not taken and then they concluded that the landowner was entitled to the sum total of those specific items and they concluded in that conclusion of law that the fair market value of land governed them.

Now, what else could they have found, unless they took each witness and said, "I believe this witness, I disbelieve this witness"

Now, there maybe some complaint and in all candor, I must take to the Court that there were some comparable sales introduced but they were introduced for different purposes.

The Government into introducing comparable sales, introduced sales not as independent evidence of value but as a means of buttressing that expert's opinion and the distinction between introducing evidence as a basis for an expert's opinion using hearsay and -- introducing evidence of comparable sales as independent evidence of value has been recognized as vital because one stands on his own, the other one is only as a basis of the expert's opinion.

Looking at the end result, in all three of these cases, as the Ninth Circuit stated in U.S. versus Lewis upon which the Fifth Circuit placed his reliance but we submit very improperly so, looking at the end result in this case, you can only conclude one thing and that is that the Commission rejected the Government's witnesses.

They did not answer it except any particular witness.

They arrived at their own independent impression of value.

They had a right to do so under the instructions given to them by the Court because the Court specifically instructed them, "You are not bound by any particular witness nor any bit of evidence".

Yes, sir.

Justice William J. Brennan: Did counsel participate in preparation of instructions?

Mr. Forrest L. Champion, Jr.: No, sir.

They were submitted to us immediately after they were given to the Commission with instructions to make suggestions to the Court.

And I --?

Justice William J. Brennan: As to the instructions itself?

Mr. Forrest L. Champion, Jr.: Sir?

Justice William J. Brennan: Were you afforded an opportunity to make --

Mr. Forrest L. Champion, Jr.: Yes sir, we were.

Justice William J. Brennan: -- suggestion as to the instructions?

Mr. Forrest L. Champion, Jr.: Yes, sir.

Justice William J. Brennan: Did counsel avail themselves of that?

Mr. Forrest L. Champion, Jr.: Well, I -- I did.

I particularly inquired as to the provision of the instructions casting the burden of proof on the -- on the landowner because the rule had been different prior to the adoption of the federal rule -- the federal rules -- in applying the federal rules to the condemnation cases.

Justice William J. Brennan: Did Government counsel make any suggestion?

Mr. Forrest L. Champion, Jr.: No, sir.

No exceptions, no suggestion.

And the only exceptions made after the awards were rendered, were these general objections that the awards do not show the basis -- the reports do not show the basis of the award, do not show how the conflicts in the evidence were resolved.

For the rule of law is -- is accepted almost universally.

Moore's Federal Practice cites it to this effect that if from the facts found, an inference maybe drawn which will support the judgment, they will be so drawn.

Prior decisions of the Fifth Circuit had accepted that readily.

But this decision completely ignores it.

Applying that principle of law to these cases and looking at the actual findings and if the Court will allow me, I will go into the actual testimony in each of the cases and what the Commission found.

In the Gavin case, the range of testimony as to the 865 acres of upland was $60 to $85.

As to the 435 acres of river land, it was $83 to $100.

The Government's testimony as to each of these was $35 per acre and $50 respectively.

The Commission returned an average of $81 per acre.

The Commission awarded $4480 severance damage to 200 acres which had been split up into four tracks by which of the taking which was well within the range of the testimony.

We introduced five comparable sales as independent evidence of value ranging between $75 and $111 or an average of 86.

The Commission's finding recall was 81.

Now, if we apply the rule of an inference, if inferences maybe drawn from the facts found, we can only conclude that the Commission gave credit to the -- all of that -- testimony including the comparable sales which were introduced as independent evidence of value making adjustments.

Now, the comparable sales are not ultimate facts.

They are evidentiary facts.

They are introduced to persuade the fact finder that this land is worth so much because this particular track of land which was similar to this instant track sold within an approximate time for a certain amount.

But can the replies that we recognize that sales of land, no two pieces of land are alike.

And it is up to the fact finder in much the same fashion that he weighs opinion evidence to make the numerous adjustments.

Now, if we -- if we infer from the facts found or the end result as found in this case, we will conclude, one, that they rejected the Government's witnesses because instead of returning an average of $43, they returned $81 per acre.

We will conclude also that they gave credence to the evidentiary comparable sales introduced because they returned $81 per acre and the average of the comparable sales introduced was $86 per acre.

You can follow that same reasoning as applied to each one of these cases and conclude if we follow the reasoning of the Ninth Circuit in U.S. versus Lewis that the Commission arrived at its own independent examination of value in the light of their visit to the land.

And the visit, the light of their visit to the land is something that is given tremendous significance by the appellate court.

I have been interested in following the cases since this decision of the Fifth Circuit to see if I could find any case which went to this extreme of saying that you must state what evidence in words, what evidence you believe and what evidence you disbelieve in order to comply with Rule 52 and 53.

I have found no case to go that far.

I have found several cases aside from U.S. versus Lewis stating that you do not have to go that far and it was very interesting to note the decision of the Ninth Circuit just recently published in Lange versus Liberty National 324 F.2d 237 wherein the Ninth Circuit said this that not only is that not required under the amended of Rule 52 (a) requiring findings of fact but that it would have been improper to have so found.

Now, we respectfully submit to the court that just plain sensitivity to propriety does prohibits the requirement that a fact finder stated in his findings of fact.

I didn't believe this witness because I thought he lied.

Unknown Speaker: (Inaudible)

Mr. Forrest L. Champion, Jr.: Yet -- no, sir, I didn't because it had not come out at the time that I wrote my reply brief.

Unknown Speaker: May I have the title?

Mr. Forrest L. Champion, Jr.: Yes, sir.

324 F.2d 237, Lange versus Liberty National Insurance Company.

Unknown Speaker: (Inaudible)

Mr. Forrest L. Champion, Jr.: Yes, sir.

Lange versus Liberty National Insurance Company 324 F.2d 237 and particularly at 241.

Now, in that case, the Court said, "It would have been improper for the trial court to recite the evidence which had led it to the conclusion," referring to the Petterson Lighterage & Towing Corporation case which is the chief case referred to in the Advisory Committee note under Rule 52.

And that is the reason why we so earnestly submit that it is not just a matter whether this Court affirms or reverses this judgment.

It is a question of the eroding effect of the decision of the Fifth Circuit upon the -- the uniform application and interpretation of these rules.

And I submit to you -- the Court that if it will read as we have sought to our brief, each of the cases referred to in the Advisory Committee note under Rule 52 (a) that it will find no case that goes to this extreme.

Indeed, the emphasis is on conciseness ultimate facts rather than on the evidence.

And also it seems to us that the law does not require a useless thing where you can determine from the in result as found what was credited.

A court does not have to come out and say, "I didn't believe this witness because he was evasive on the stand."

Now, recall this too, when the trial judge in this case reviewed this matter, he had not only the detailed findings of the fact and the recital in the findings of fact that we determined the value to be from the evidence as a whole, they stated it in words.

Now, if they determine this to be value from the evidence as a whole, they -- the only logical inference that you can draw from that finding is that they didn't particularly discredit or any particular witness, they didn't conclude that any particular witness was lying because after all really, only opinion evidence is involved and everyone is entitled to an opinion particularly and there -- there is very little required in -- very little that is necessary to qualify a witness to testify the value.

Indeed, the law recognizes that a farmer is an expert as to farmland.

And of course, in these cases, these awards did exceed the expert witnesses' opinion.

But it is also remarkable that the Fifth Circuit, since this decision was rendered, stated categorically that not only is it not error and it -- no deprivation of due process but that the failure to follow advice of experts is neither perceived denial of constitutional rights nor even error which maybe corrected on direct review and neither military or civil case.

Williams versus Heritage 323 F.2d 731 had no fault.

There's nothing new in there.

But it is a positive statement of a universally accepted rule.

Unknown Speaker: (Inaudible)

Mr. Forrest L. Champion, Jr.: Yes, sir.

323 F.2d 731 had no fault.

I -- I apologize to the Court for the length of our briefs.

I apologize to the Court for the seeming elementary nature of the argument.

But we so strongly feel that the integrity of these rules are at stake in this case and we also strongly feel that the Government's request that a new trial be granted is a very unconscionable request when particularly, on the mere suggestion that the Commissioners may not be available.

We still have the transcript.

The Commissioners are still available.

The land has been covered up.

But that's not what we asked in this Court to do.

We are asking the Court, this Court to set aside the judgment of the Fifth Circuit and to reinstate the judgment of the trial court because we say as a manner of law that it is clearly erroneous.

We recognize our burden to prove it's clearly erroneous.

But we respectfully maintain that it is so contrary to the intent of the rules that it should be set aside and the uniformity of the -- of the federal -- of their interpretation and application of the federal rules maintain.

Justice Hugo L. Black: (Inaudible)

Mr. Forrest L. Champion, Jr.: Three.

Justice Hugo L. Black: (Inaudible)

Mr. Forrest L. Champion, Jr.: Three.

Justice Hugo L. Black: That's all of them --

Mr. Forrest L. Champion, Jr.: Three cases, all (Voice Overlap)

Justice Hugo L. Black: -- does all of them adjacent to the river?

Mr. Forrest L. Champion, Jr.: Sir?

Justice Hugo L. Black: All of them adjacent to the river?

Mr. Forrest L. Champion, Jr.: Yes, sir.

Justice Hugo L. Black: They try to reach it?

Mr. Forrest L. Champion, Jr.: Yes, sir.

The Walter Giffard, Earl of Buckingham.

Yes, sir.

Justice Hugo L. Black: (Voice Overlap) --

Mr. Forrest L. Champion, Jr.: Yes, the Walter Giffard

Justice Hugo L. Black: (Voice Overlap) I thought it's Columbus?

Mr. Forrest L. Champion, Jr.: There are about 108 -- 100 miles, Your Honor, from Columbus.

Justice Hugo L. Black: South?

Mr. Forrest L. Champion, Jr.: Yes, sir.

Justice Hugo L. Black: What was the -- was the amount per acre given for their land the same as to each plot?

Mr. Forrest L. Champion, Jr.: No, sir.

And -- and for good reasons, because in the Gavin case, there was a highway number 435 (Inaudible) land and the testimony was that the land next to the river was more valuable.

The land north of the river was sandy and therefore, one worth as much.

They awarded on the average of $81 an acre of the land taken there.

That was further south toward George -- toward Fort Gaines.

As you go on up toward Georgetown, we ran into the Lindsay case which had some of the best farmland in the country and the transcript should -- so show because the bottom land down there was good to farmland as it is in the State of Georgia.

Justice Hugo L. Black: What are they using for?

Mr. Forrest L. Champion, Jr.: They're using it for farming.

Justice Hugo L. Black: What farming?

Mr. Forrest L. Champion, Jr.: Grazing, grazing and peanuts.

Yes.

And the evidence showed tremendous production on that land.

And the other land was located within the outskirts, part of it within the city limits of Georgetown and improved tremendously.

As a matter of fact, the Government's testimony was that it was over improved and one of the experts for the Government said in a -- one of the track -- the houses that was bringing in $35 an acre, I mean $35 per month, one worth anything because the -- the land was over improved and that therefore, it didn't contribute anything to the market value of the land.

Justice Hugo L. Black: So that was --

Mr. Forrest L. Champion, Jr.: $160 per acre.

But that was because it was tremendously improved with fences, with houses, with bonds and -- and it also he had his home located on it.

Justice Hugo L. Black: Does he take the fee?

Mr. Forrest L. Champion, Jr.: Yes, sir.

All except 70 acres left -- purely, it was the poorest land left and it only was good as -- as they found in the findings of fact that it was good only for the growth of pine trees and grazing.

And it was multiple -- little times on it and it was inaccessible also.

There is one other thing that I beg the Court to leave to -- to distinguish and that is the reliance of the Government upon these appeals from administrative agency.

And I say to you -- the Court that we think we detect a distinction between the review of -- of cases wherein injunction was granted because Rule 52 expressly requires that you state the grounds of your decision where the extraordinary relief of injunction is granted.

Likewise on the Rule 8 (b) of the Administrative Procedure Act, it says not only findings but the reason then basis therefore.

And -- and there are two -- there are good reasons for that.

One is, and it was clearly enunciated by this Court in the Burlington case decided at the last term, one is that Congress vested in the administrative agency that discretion.

And in that particular case, a choice between two definite remedies was involved not a choice as between believing two sets of witnesses as to the same issue.

So, naturally is -- more detailed findings were necessary but this Court was also jealous of the fact that it did not encroach upon the prerogative of the administrative agency to decide and exercise that discretion as vested in it in Congress.

So you've got -- but there is one other thing.

Due process is inherent in the Federal Rules of Civil Procedure.

Due process is not necessarily inherent in the administrative hearings.

And it is the province of this Court and this Court had jealously regarded the right to see that due process was done in administrative agencies so as to maintain the integrity of our Government and to maintain the -- the object of the congressional legislations.

Justice Hugo L. Black: (Inaudible)

Mr. Forrest L. Champion, Jr.: No, sir.

Except -- I don't see that due process is involved.

I think that the only thing it is involved is the Fifth Circuit was -- was wrong in stating that -- that the trial court didn't know what it was doing when it set aside these detailed findings.

Justice Hugo L. Black: I asked that because I wonder what is the relevance of your argument about due process.

Mr. Forrest L. Champion, Jr.: Well, this, that I think I detect a requirement in the decisions that findings be more detailed and with quite a bit degree of collaboration in findings made by administrative agencies as compared with a master.

I don't think that the findings of a master need to be as detailed because Rule 8 (b) of the Administrative Procedure Act expressly requires a detailing of the reasons and bases therefore whereas Rule 53 (e) (2) says that the finding shall be made only if required in the order of reference.

And in this case, the trial judge did require findings but he did not detail the nature of the findings to be required, to be found.

And it would have been a simple matter for the Government to have state.

Now, you haven't made sufficient findings as to these evidentiary sales and the judge could have referred the thing back to the Commission immediately.

These findings could have been made.

We could have had a review, but it's not necessary that all of this detail be found in order for the appellate court to apply the clearly erroneous doctrine because prior decisions had said that it is only necessary that we check the general processes of the court below in order to determine if a mistake had been made, if there had been a clear misapprehension of the rule of law applied or the other usual rules that are accepted in determining that a decision is clearly erroneous.

My thanks to the Court.

Chief Justice Earl Warren: Did you -- did you say the land is now covered up?

Mr. Forrest L. Champion, Jr.: Yes, sir, we understand that it is now covered up because the water had coming on up toward Columbus now.

Chief Justice Earl Warren: Yes, yes.

Mr. Forrest L. Champion, Jr.: I think we'll soon have a port of Columbus.

Thank you, Your Honor.

Chief Justice Earl Warren: Mr. Harrison.

Argument of Harold S. Harrison

Mr. Harold S. Harrison: Mr. Chief Justice, may it please the Court.

The United States joined in a request that certiorari be granted in this case and we did so because the opinion of the Fifth Circuit is in a valid conflict with the opinion of the Tenth Circuit in the Merz case.

Position of the United States is that the Fifth Circuit is eminently correct and that it is the Merz decision that's erroneous.

These cases reflect that the lower courts have founded the bet in regard to the use of Federal Rule 71A (h) Commissioners.

This is not surprising because jury trial is the rule, albeit, too often ignored and the use of the Commission is an exception.

Now, at the time the rule was enacted, some 46 out of the present 50 States provided for a jury trial either de novo from the viewers or the land Commissioners' report or at some stage on appeal.

But the rule changed that and got away from the -- that double procedure that it had been in effect even the -- the previous federal experience with the TVA where the Commission would render award then either party could have a trial de novo by three judges or on appeal, the Court of Appeals could treat it de novo.

But the federal rule got away from that and made the Commission, the judicial tribunal.

Now, the fact that a number of the District Courts have allowed the exception to devour the rule, we think really just points out the need for careful and full report by the Commission, to show what it has done.

Justice Potter Stewart: Mr. Harrison.

Mr. Harold S. Harrison: Yes, sir.

Justice Potter Stewart: By the exception, do you mean the use of commissioners rather than a jury --

Mr. Harold S. Harrison: Yes, sir.

Justice Potter Stewart: -- the rule being a --

Mr. Harold S. Harrison: In -- in many --

Justice Potter Stewart: -- jury trial?

Mr. Harold S. Harrison: -- districts, sir, it's just automatic.

They use them entirely on some districts.

Justice Potter Stewart: Generally speaking, the -- the -- is it -- is it accurate to say that as a generality, the Government usually wants to jury and the landowners usually want commissioners?

Or is that enacted?

Mr. Harold S. Harrison: Well, we have gotten away from the routine demand of jury trial, Your Honor.

As a matter of fact, now, the Government is vigorously pressing a program that's called "our small track program" where we're urging the courts without the intervention of a jury or without a commissioner, the judge itself to hear these cases.

And in those --

Justice Potter Stewart: There's room for that -- there's room for that under the rule.

Mr. Harold S. Harrison: Oh, very much.

Justice Potter Stewart: I mean, that's clearly provided for.

Mr. Harold S. Harrison: And as a matter of fact, in the last few years, we have cut the pending truckload down from 36,000 to now, I'm happy to say, in the 19,000 pending cases and largely because we have persuaded courts to hear these, particularly the small value cases.

The Administrative Officer of the United States courts in its annual report took a case into command the lands division for this program and to speak of the success of it.

But this was big business, Your Honors.

Here, in this --

Chief Justice Earl Warren: (Inaudible) when did you -- when did you start to change this policy of amending juries?

Mr. Harold S. Harrison: Well, actually -- yes, it has since -- since this case, sorry.

Chief Justice Earl Warren: For the last two year, hasn't it?

Mr. Harold S. Harrison: Yes, sir.

Yes, sir.

Chief Justice Earl Warren: Before that, the Government (Voice Overlap) --

Mr. Harold S. Harrison: Before that, we would --

Chief Justice Earl Warren: -- practically all the time.

Mr. Harold S. Harrison: -- we would have a routine demand for a jury trial and as Mr. Marquis indicated yesterday, then as the cases came up.

Depending on the nature of them, we frequently proceed to some other way of trying out.

Chief Justice Earl Warren: In a -- in a case like the Hanford -- Hanford condemnation where there were thousands of -- of items at the case, Government demanded the jury in every one of those, didn't it?

Mr. Harold S. Harrison: Yes, in many of the early projects we did.

Chief Justice Earl Warren: And then most of the -- most of those big ones are the West that did that, have thousands of pieces of land, parts of the land, the Government always demanded the jury, did it not?

Mr. Harold S. Harrison: It did before.

Chief Justice Earl Warren: And then --

Mr. Harold S. Harrison: Yes sir.

Chief Justice Earl Warren: -- and then the Court was so clogged that for years and years, they couldn't get their money after the -- after the Government had taken it from them, isn't that correct?

Mr. Harold S. Harrison: That happened, Your Honor.

And it's --

Chief Justice Earl Warren: It happened -- it happened --

Mr. Harold S. Harrison: Yes sir.

Chief Justice Earl Warren: -- habitually, is it not?

Mr. Harold S. Harrison: Well, and there -- there were number of cases where we did feel that a commission was proper.

Chief Justice Earl Warren: And did --

Mr. Harold S. Harrison: You had a --

Chief Justice Earl Warren: -- why wouldn't it be in the big one like the Hanford case where you have thousands of -- of items or thousands of partials rather?

Mr. Harold S. Harrison: That would be one of the instances, I think, where a commission -- you can consider using a -- a commission where you have many trucks particularly if they are small value and out considerable distance where a court sits, we concede --

Chief Justice Earl Warren: But didn't the Government --

Mr. Harold S. Harrison: -- that --

Chief Justice Earl Warren: -- didn't the Government hold up those cases for years and years and clog the whole -- the court system up in that part of the country because --

Mr. Harold S. Harrison: Yes sir.

Chief Justice Earl Warren: -- they demand juries who wouldn't try them before the court and wouldn't try them before a commissioner?

Mr. Harold S. Harrison: That did happen.

That did happen.

I'm happy to say we have a -- a program now that is much more enlightening than --

Chief Justice Earl Warren: Yes.

Mr. Harold S. Harrison: -- that we're --

Chief Justice Earl Warren: I'm sure.

Mr. Harold S. Harrison: -- we're going tremendously on it.

I just -- it might be interesting to the Court in this past year.

In the fiscal year, there were over 8000 new condemnation tracks that brought in the condemnation in 1914 new cases.

Total cost last year, we spend over $81 million in condemnation.

So this is tremendously big business.

Justice Hugo L. Black: Was the Government selling this information method?

Mr. Harold S. Harrison: No, sir.

No, in this case we're not.

Chief Justice Earl Warren: Well, the Government has --

Mr. Harold S. Harrison: No, sir.

Chief Justice Earl Warren: -- has challenged the whole system hasn't it, that repeatedly have tried -- didn't the Government -- didn't the Department of Justice try to -- to cut off the appropriation for commissioners for a period of five or six years before the last year to --

Mr. Harold S. Harrison: There was opposition to it, Your Honor.

Chief Justice Earl Warren: By -- by the Department of Justice, didn't the Department of Justice go before the appropriation committee and ask him to cutoff the appropriation for commissioners?

Mr. Harold S. Harrison: I have no personal knowledge as what went on but I concede that there was some debates and there was a question, in fact, at one time, they did cut off an appropriation for commissioners.

Yes, sir.

Chief Justice Earl Warren: Had it been done -- would've been on the -- in the State of -- of Georgia in -- in the courts, we would not have been able to have any commissioners at any place no matter -- no matter how --

Mr. Harold S. Harrison: Yes, sir.

Chief Justice Earl Warren: -- how necessary they might be in the -- in the multiple condemnation suit?

Mr. Harold S. Harrison: Yes sir.

The --

Justice Hugo L. Black: May I ask you if you know precisely how commissioner has proceeded?

Mr. Harold S. Harrison: Well, yes, sir.

In general, there are --

Justice Hugo L. Black: You appoint -- you appoint three commissions.

Mr. Harold S. Harrison: Yes.

And there's no require -- there was no requirements filled out as to what --

Justice Hugo L. Black: (Voice Overlap) they agree.

Mr. Harold S. Harrison: -- their qualifications need there be -- need be.

Justice Hugo L. Black: Are they appointed from -- from the community?

Mr. Harold S. Harrison: Generally, yes, sir.

Normally, though not necessarily, there is a lawyer in this particular case.

There was a lawyer, there was a businessman, there was a real estate man.

Justice Hugo L. Black: Now, when they start, do they hear witnesses?

Mr. Harold S. Harrison: Oh, yes, sir.

Justice Hugo L. Black: Do they take witness evidence stenographically?

Mr. Harold S. Harrison: Yes, sir.

Justice Hugo L. Black: Are there objections in the -- objections be made for the introduction of evidence?

Mr. Harold S. Harrison: There can be, Your Honor, but the -- the Commission itself determines the admissibility of the evidence.

And frequently, for example --

Justice Hugo L. Black: Is that final under the -- under the rule?

Mr. Harold S. Harrison: No, you can make your objection to it in some -- the circuit has been indicated that the Commission should receive anything whether normally admissible or not.

Generally, the Chairman of the Commission was a lawyer and will rule on it.

But --

Justice Hugo L. Black: Is all the evidence sent to the -- the court when it finally got along to review the -- the report of the Commission?

Mr. Harold S. Harrison: Sometimes yes and sometimes no.

In this particular case for example, we found when we're going to send up the transcript of the evidence that the reporter apparently had not even made the copy that normally goes to the court and one volume of the transcript.

We sent the original on down to the court so they'd have at that.

And the court, in this instance, does not recite that it looked up at the transcript after all.

Justice Hugo L. Black: On what grounds generally does -- can the court set aside or refuse to accept the findings of the Commission?

Mr. Harold S. Harrison: Where they are inadequate for reviewing, Your Honor --

Justice Hugo L. Black: So might --

Mr. Harold S. Harrison: -- and I think that --

Justice Hugo L. Black: -- for review, suppose they are adequate, suppose they give all of the facts --

Mr. Harold S. Harrison: Where -- where they don't -- where they don't show the grounds for decision using the language of this Court, I'd like to get into it at a moment, or as Mr. -- as Judge Jerome Frank said in the Westchester County case that Mr. Marquis has referred to yesterday said the rational foundation and that is where we are lacking in this particular case here.

Justice Hugo L. Black: What do you say a rational what?

Mr. Harold S. Harrison: The rational foundation, the reasons --

Justice Hugo L. Black: What -- what --

Mr. Harold S. Harrison: -- the basis and reasons for --

Justice Hugo L. Black: You mean, they can -- the Commissioner --

Mr. Harold S. Harrison: --the award.

Justice Hugo L. Black: -- the Commissioner lacks a rational foundation?

Is that what you mean?

Mr. Harold S. Harrison: Yes, sir.

We're not given the grounds of decision.

And I'd like to go into and show you --

Justice Hugo L. Black: I'm trying to find out just a moment and satisfaction in connection with this because it seems to call for something more than the mere interpretation of the statute, isn't it?

Mr. Harold S. Harrison: Yes.

Well, I -- I think --

Justice Hugo L. Black: Can -- can the court set it aside on the ground that you think is too much?

Mr. Harold S. Harrison: Normally not.

No.

No --

Justice Hugo L. Black: Is he allowed to do so or is he denied that right?

Mr. Harold S. Harrison: I think it's one of the difficulties when they start talking in terms of Rule 52 (a).

That isn't applicable here as I see it except by analogy where expressly -- Rule 71A (h) expressly adopts Rule 53 (e) (2) in this respect but some of the courts, I think, have just taken upon themselves to change the award where they shouldn't do.

Justice Hugo L. Black: Same -- you mean increases or decreases?

Mr. Harold S. Harrison: Either.

Justice Hugo L. Black: Either.

Mr. Harold S. Harrison: Either.

Justice Hugo L. Black: Are you -- are you saying that -- you think they do not have that power?

Mr. Harold S. Harrison: Yes, sir, I am.

Under -- they can modify, of course, under Rule 53 (e) (2) which is the proper rule.

And one of the --

Justice Hugo L. Black: Modify to what extent?

Mr. Harold S. Harrison: Sir?

Justice Hugo L. Black: Modify, how?

Mr. Harold S. Harrison: Well, the --

Justice Hugo L. Black: Modify the amount?

The basic thing and this is amount.

Mr. Harold S. Harrison: Yes, sir, it is.

The basic thing is the -- is the amount and that is the thing that -- I say there has to be a rational foundation for.

We have -- we have to know the -- the reasons.

Justice William J. Brennan: (Inaudible) clearly erroneous, as I understand it, so this is treated this as a master before it could be.

The District Court which appointed the Commission may set aside the valuation finding, may it not --

Mr. Harold S. Harrison: Yes, sir.

Justice William J. Brennan: -- if it's clearly erroneous.

Mr. Harold S. Harrison: Yes, sir.

Justice William J. Brennan: Now, may -- may it -- they discovered it's clearly erroneous.

The District Judge take a record and say, “The finding of $81 was clearly erroneous but on the record, I find that it's $75."

May the District Court do that?

Mr. Harold S. Harrison: We think it should not that the --

Justice William J. Brennan: Well, not whether it should not --

Mr. Harold S. Harrison: Yes, sir.

Justice William J. Brennan: -- may it do so.

Mr. Harold S. Harrison: No, sir.

Justice William J. Brennan: May not in the (Voice Overlap) --

Mr. Harold S. Harrison: I don't -- I don't think -- I don't think it should other proper construction of 53 (e) (2).

Justice Byron R. White: Do you mean all of the provisions of the master's rule doesn't apply to the case?

Mr. Harold S. Harrison: Oh, no, sir.

No, sir, it does not.

Justice Byron R. White: So it may not modify the report?

Mr. Harold S. Harrison: Yes, it may modify.

Justice Byron R. White: Here -- here, but the -- may the --

Mr. Harold S. Harrison: Yes, sir.

Justice Byron R. White: -- the additional evidence?

Mr. Harold S. Harrison: Yes, sir, it may.

Justice Byron R. White: Like a master made?

Mr. Harold S. Harrison: Yes.

Yes.

Justice Byron R. White: Because the master's rule -- report after hearing may adopt the report or may modify it or may reject it in the (Inaudible) impart or may hear and receive further evidence or may recommit it to instruction.

Mr. Harold S. Harrison: Yes, sir.

Justice Byron R. White: Now, that certainly applies to the Commission.

Mr. Harold S. Harrison: Yes, yes, it does.

Justice Byron R. White: Well, then in any -- it doesn't need to hear anymore evidence in order to modify it either.

He can do it on the record.

Justice William J. Brennan: In other words, does not indicate that the answer to my question is, so far as the rule is concerned, the District Judge could, just on the record made before the Commissioners, reduced the valuation from $81 to $75.

Just -- just seems to me that there has -- the rule -- rule fairly says so, otherwise what does it mean that the District Judge may modify?

Mr. Harold S. Harrison: The -- if credibility of witness is involved, then no.

And that -- to that, I invite your attention to the only recent opinion on condemnation case that has come down since the briefs and that's the Rainwater case in the Eighth Circuit.

When you get into credibility of witnesses, then we feel that it is not proper for the District Judge to just modify in that manner.

Unknown Speaker: (Inaudible)

Justice William J. Brennan: I expect the question is whether under the rule, he may nevertheless.

Mr. Harold S. Harrison: Well, I think he may not it if credibility of witness is involved.

May I --

Justice Hugo L. Black: (Inaudible) all this talk is about what they actually find, can the judge get the record before him so he can see what the basis of it was?

Mr. Harold S. Harrison: Yes, sir, he can.

He can.

May --

Justice Hugo L. Black: Can the Court of Appeals give him?

Mr. Harold S. Harrison: Yes, sir.

Justice Hugo L. Black: Did it have it in this -- this case?

Mr. Harold S. Harrison: It did.

Justice Hugo L. Black: And the entire record before it?

Mr. Harold S. Harrison: Yes.

Justice Hugo L. Black: Was it very long?

Was it very long?

Mr. Harold S. Harrison: Several volumes, Your Honor, yes.

Sack of transcripts so high, the District Judge does not say that he read that, states that he did it on -- on the report.

Now, may I --

Justice Hugo L. Black: Do you subscribe, are you arguing for the principle that in order to make findings that are required, the submission is -- must say, "We take this witnesses' evidence and we don't believe it.

We don't believe this part of (Inaudible), we do believe this other part of the witnesses' evidence and after we get all through, then we have these much evidence left that we believe and on it therefore, we must find this problem."

Are you arguing to some kind of findings like that?

Mr. Harold S. Harrison: I'm arguing that there -- there must be sufficient to show the hows and whys.

May I use an analogy that was used in the Court of Appeals when the similar question was asked with my colleague sitting here?

Said that for all the world, the report here, reminded him of a murder mystery that was 50 pages long, with pages 45 to 49 missing.

The first 44 pages had given the cast of characters in the situation and all the suspects.

And then you had a gap and you came to the last page that shows the murderer but the -- the why and the how and the reasons were all missing.

And the Court of Appeals, he allowed us how the Government had been murdered and we wanted to know how.

Carrying that analogy a step further, the Court of Appeals has sent it back for those missing pages to show us how and why.

May I --

Justice Hugo L. Black: Is that -- is that what I asked you?

It's required, maybe it is.

It's almost as easy just to read the record, wasn't it?

Well, I have findings, you got to go into that much detail but the witnesses sometimes -- of course, the judges have no judicial argument we know although there was -- what was one says, "I wanted to (Inaudible) judges of the Fifth Circuit, there was a judicial argument but what you're -- what you're saying is that if that -- that take of each witnesses' testimony, say, "How much of it you believe and don't believe?

Mr. Harold S. Harrison: I think the Court of Appeals has answered that well by putting it this way, they said, "We do not say that every contested issue raised on the record before the Commission must be resolved by a separate finding of fact.

We do say, however, that there must be sufficient findings of subsidiary facts so that will appear -- so that it will appear to the reviewing court that the ultimate findings of value were soundly and legally based.

Justice Hugo L. Black: A subsidiary of facts --

Mr. Harold S. Harrison: Now, certainly that's -- that's good law.

Justice Hugo L. Black: -- findings of subsidiary facts would be -- that wouldn't require this detailed statement about what the witnesses told, would it?

I understand by subsidiary facts, there are a number of facts that they find from the evidence generally and then on those, I say, you reach this conclusion.

But I -- I don't know just how far it seems to be a rather difficult thing --

Mr. Harold S. Harrison: Well --

Justice Hugo L. Black: -- to decide how far they must go with reference to the witnesses.

Mr. Harold S. Harrison: In -- in the Dalehite opinion, Mr. Justice Black, this Court spoke of the preliminary and basic facts.

In the Florida v. United States, this Court spoke of basic or essential findings.

In the Cunningham case that -- that was cited in the briefs, the Court spoke of basic and evidentiary facts.

Justice Hugo L. Black: I never thought --

Mr. Harold S. Harrison: This --

Justice Hugo L. Black: -- of those words myself, as -- and holding the idea that you had take out the witnesses one by one, say, what part of the evidence you believed and didn't believed.

Mr. Harold S. Harrison: Let me explain some of the things that are missing here but I think it'll -- it'll help -- help show what we feel the parties were entitled to.

For example, normally, indeed almost unbearably, an award in condemnation will be somewhere before the -- between the condemnor's high testimony and the condemnee's low testimony.

But not so here, the award here was in excess of the landowners' own witnesses, own expert witness rather, from the size of the award, we're not told why this is the case but from the size of the award, it would appear that these Commissioners, for some reason, decided to base their award on the testimony of the landowner, himself and the lay witnesses.

Unknown Speaker: (Inaudible)

Mr. Harold S. Harrison: Well, certainly -- no, it's not impermissible, Your Honor.

Unknown Speaker: (Inaudible)

Mr. Harold S. Harrison: I think in this connection, Id like to quote a sentence used by Judge Louis Goodman in the Northern District of California.

He characterized that type of testimony in this way, "So -- on the other hand, the testimony of the defendants and their respective appraisal witnesses, appear to me to be things with the over enthusiasm of owners and to represent more of the viewpoint of one who attaches value because of sentimentality and devotion to his or her own property."

Now -- now, that was all that was left here.

Unknown Speaker: (Inaudible)

Mr. Harold S. Harrison: He -- yes, he affirmed the award but that's all.

Now --

Unknown Speaker: (Inaudible)

Mr. Harold S. Harrison: They are all -- we feel low that when such a highly unusual result of this is reached, certainly, there should be some reason.

We should know why.

All the experts were rejected and only this type of lay witness was accepted.

We feel there's -- there's many other things.

For example, the comparable sales data here, Government witnesses relied heavily on comparable sales and recited many of them and yet the report doesn't show at all how these were construed.

The basic conflict was over the -- the value to be given these comparable sales.

The --

Unknown Speaker: (Inaudible)

Mr. Harold S. Harrison: At least that would have given us the reason we'd have known what it did in that respect.

Unknown Speaker: (Inaudible)

Mr. Harold S. Harrison: No.

Unknown Speaker: (Inaudible)

Mr. Harold S. Harrison: I'm --

Unknown Speaker: (Inaudible)

Mr. Harold S. Harrison: Well, I'm -- I'm saying, we don't know what they did.

There's -- there are many things for example that might've been clear error if we knew.

For example, in the matter of improvements to the land, the Government witnesses testified as to the value of land as enhanced by the improvements on it, which is the proper way.

And yet some of the landowners' witnesses valued the land so much per acre and then added so many thousand dollars for this, of improvement and that improvement.

Now, if the Commissioners, in arriving at this high awards, just took a land value and then arbitrarily added so much for improvements, that was an erroneous way of doing it.

Chief Justice Earl Warren: (Inaudible)

Mr. Harold S. Harrison: We don't know what they did.

Chief Justice Earl Warren: (Inaudible)

Mr. Harold S. Harrison: Yes, sir.

Chief Justice Earl Warren: (Inaudible)

Mr. Harold S. Harrison: Yes, sir.

Chief Justice Earl Warren: (Inaudible)

Mr. Harold S. Harrison: I don think so, no, sir.

There were other aspects of conflicting evidence that showed from the report but no way of knowing how it resolved.

For example, there was testimony about the fencing, now fencing is mentioned in the report but there is no finding as to the fact that fencing was necessary, there's no finding as to how much fencing, there's no finding as to the type of fencing, all of these would make a difference.

Access road is a similar thing.

There's testimony as to access roads, the report show it but there's no showing how that fits into the award.

We simply don't know.

Chief Justice Earl Warren: (Inaudible) object to these findings?

Mr. Harold S. Harrison: Oh, yes, sir.

Objection --

Chief Justice Earl Warren: When -- where was the first -- when was the first opportunity you had to object to the finding?

Mr. Harold S. Harrison: Well, after the commission report was received, Your Honor, and then --

Chief Justice Earl Warren: Right.

Mr. Harold S. Harrison: -- objections were filed.

Chief Justice Earl Warren: Were -- were filed --

Mr. Harold S. Harrison: Oh, yes.

Chief Justice Earl Warren: -- with the trial court?

Mr. Harold S. Harrison: With -- with the trial court.

Yes, sir.

Chief Justice Earl Warren: Did you -- did you in -- in those objections specified what -- what you thought the -- they should contain?

Mr. Harold S. Harrison: The objections appear, first set for example on page 50 to 51 --

Chief Justice Earl Warren: I know, but did you --

Mr. Harold S. Harrison: 50 --

Chief Justice Earl Warren: -- did you specify what --

Mr. Harold S. Harrison: Each --

Chief Justice Earl Warren: -- what respects if they were wrong in -- in --

Mr. Harold S. Harrison: Not -- not in broad detail or not in detail, Your Honor.

Each set did include some particular evidence that we said that were alone -- was erroneously admitted.

But the -- the objections were mainly on the part -- on the point that they weren't sufficiently specific to know what was done.

Chief Justice Earl Warren: Well, did you -- did you comment on -- on wherein they lacked specificity?

Mr. Harold S. Harrison: No, sir and that --

Chief Justice Earl Warren: Why wasn't that done?

You wanted to correct your thing down there where it should've been corrected.

Mr. Harold S. Harrison: Your Honor, we think this Court answered that in the Kelley case by indicating that -- well, let me say -- say first that a party cannot deal with specificity it -- to a report that is never seen.

We think this is where the Ninth Circuit and this Circuit difference and that the Fifth is correct.

In the Lewis case, which incidentally rejected the overruled Judge Hall's -- a case where Judge Hall said that the report only had to be like a jury verdict.

That was overruled but the Ninth Circuit indicated that the -- there had to be detailed statements.

I suppose in the negative to show exactly what you felt was wrong.

This Circuit, in remanding the case, does not place any limitation to that nature.

And we think clearly that the parties cannot be expected to give detailed objections to an incomplete report, one, that they don't know what the inferences were, what the -- what the reasoning was, what the Commission had in mind.

Chief Justice Earl Warren: Why couldn't you make it there as well as you can here?

Mr. Harold S. Harrison: Unless you know, I don't think you have to.

It's where a report is insufficient, then it goes back to be completed and there is -- was coming to the -- well, one of their answer to that, Mr. Chief Justice, we don't think this goes to a jurisdictional matter.

The Circuit Court was not persuaded by this argument below.

I'm not sure that anything under this is specifically here.

But even so, we don't feel that the parties should be put in the position of having to try to be specific with report -- with respect to a report that does not contain these hows and whys and wherefores.

Justice Byron R. White: -- you mean by that of the hearing, what do you say?

Mr. Harold S. Harrison: I think, I would do as I do here and explain the -- the things that we feel are necessary that we -- we should've be --

Justice Byron R. White: How did you know it isn't complete?

Mr. Harold S. Harrison: Well, it's -- it's incomplete, Your Honor, where you're not given any of these grounds of decision using the words of this case.

Justice Byron R. White: But you can't say what's wrong with it.

Mr. Harold S. Harrison: No, I don't think you can without --

Justice Byron R. White: Well, you say that ground has simply had been given --

Mr. Harold S. Harrison: Well, yes, you -- you can go that far but as far as specifics, this Court isn't --

Justice Byron R. White: You didn't go -- you didn't go that far, the objection.

Mr. Harold S. Harrison: No, sir, we didn't.

We feel that it's sufficient here go to object to a report that is -- isn't sufficient and object to it on that ground and have it go back to get complete.

This Court in Kelley, for example, said in Kelley v. Everglades District, it is not the function of this Court to search the record and analyze the evidence in order to supply findings which the trial court failed to make.

In the Florida case, there's also some excellent language by this Court and in several other cases.

We think --

Chief Justice Earl Warren: (Inaudible) could've required the Commissioners to make the findings if you had pointed out the efficiency of those findings, wouldn't it?

Mr. Harold S. Harrison: Yes, sir.

Chief Justice Earl Warren: And my question --

Mr. Harold S. Harrison: We --

Chief Justice Earl Warren: -- is if -- if that could've been done there, why shouldn't it been down there instead of you now pointing out the deficiency to us but having failed to do it with the trial court?

Mr. Harold S. Harrison: We did do it, of course, to some extent as I say.

Each one of the objections that --

Chief Justice Earl Warren: Well, was it sufficiently done?

Mr. Harold S. Harrison: I don't think it's necessary, Your Honor.

The Government's position is that where there is an inadequate report, it should be sufficient to say it is inadequate and get an adequate report before the parties are in the position of trying to have to spell out all the negatives of what should or should not have been there.

We think, the proper way, the -- the burden is on the fact finding body to file a sufficient report.

May I -- may I say this that --

Justice John M. Harlan: (Inaudible) report in the sense that you don't know the reasoning that has lead to the Commission the result, you've got one or two choices, either to say, we object to do -- to the award that it's too high or you can, without knowing -- without being able to give any reasons for except to introduce new evidence or you say that the reports are inadequate, you can't go an objection.

Mr. Harold S. Harrison: Yes, sir, and that -- that's the position.

Justice Potter Stewart: Is that --

Mr. Harold S. Harrison: All --

Justice Potter Stewart: -- what you're -- is that what you're saying?

Mr. Harold S. Harrison: Yes, sir.

And all the Government seeking is meaningful participation by the Court in these cases.

We get it where there's a jury and we get in the judge-tried case.

But unless you require adequate findings, you don't get it in the Commissioners.

Thank you.

Print this transcript Transcript: 

Argument of Roger P. Marquis

Chief Justice Earl Warren: Number 65, United States, Petitioner, versus Louis T. Merz, counsel on the premise.

Mr. Marquis.

Mr. Roger P. Marquis: May it please the Court.

This and the case to follow it are the first to present to this Court problems concerning the procedural administration of Rule 71A which was adopted in 9 -- it became effective in 1951, providing the federal condemnation procedure and practice.

The precise issue here of both of these cases is the nature of the findings and the report that is required to be made by such a commission.

It is pointed under that rule.

There's been a considerable diversion of opinion in the lower courts and by attorneys on this subject and on other subjects concerning the relationship of a commission under the federal rule and the district court and their relative functions.

A little bit later, I will detail a little of the history of this rule and its comparison which I think shows that this is a com -- this commission is a completely new creature of condemnation law and is not to be analogized or compared in its legal terms with the commissioners, the Board of Appraisers or the Board of Views or whatever they might be called, with which we fam -- were familiar before 1951 and which prevails under state law.

Justice Potter Stewart: This did not come in then with the federal rules, whenever it was, 1938.

Mr. Roger P. Marquis: No, the -- there was a great conflict and difficulties about the condemnation rule.

So that it was postponed.

The committee postponed it for almost 20 years be -- and there was a great controversy on this particular subject.

It went back and forth with the committee a couple of times before this rule were ever adopted, especially this Rule 71A (h) which is the rule as to method of trial.

Justice Potter Stewart: Was there any provision at all before -- in -- in the original federal rules or was there just provision of the first trial?

Mr. Roger P. Marquis: There was not -- we were conforming to local law.

We were following the local practice up to 1951.

The -- first, our position is this, that the commission's report must state what the facts, physical and economic and that includes what the evaluation opinions are, what was the basis for them, what are the other facts relating to evaluation, the issues before them, it must state what the controversial issues are between the parties and it must state how the commission resolved those controversies, and what was the basis for its particular awards that it made.

That is our basic position in both of these cases.

The Merz case, the one which I am arguing, can be justified.

The judgment below can be affirmed only if you conclude that none of the things which I mentioned are necessary to be reported by a commission and only if you conclude, as the Tenth Circuit did in its opinion, that a so-called general finding, that is simply a monetary award, is all the commission need to tell us.

Justice William J. Brennan: I think that you were on the (Inaudible)

Mr. Roger P. Marquis: It's --

Justice William J. Brennan: (Inaudible)

Mr. Roger P. Marquis: Not necessarily a particular case.

It maybe a particular project sometimes or in Kansas, at the moment, we have a group of 12 standing commissions.

But they are ad hoc in the sense they're non-professional.

They're engaged in other activities and this is a secondary activity of theirs.

Justice John M. Harlan: (Inaudible)

Mr. Roger P. Marquis: There of course, are no provisions in the rule as to who shall be a commission.

The -- it varies considerably between the judges and the district courts in various places of what they appoint, I would say, almost invariably.

They will appoint at least one lawyer.

And, they may have -- in this case, we have two lawyers and appraiser.

Very often, you have an appraiser --

Justice John M. Harlan: A real estate appraiser?

Mr. Roger P. Marquis: A real estate appraiser yes.

Or very often you may have one real estate man, real estate broker, a businessman, and a lawyer.

Justice John M. Harlan: (Inaudible)

Mr. Roger P. Marquis: There are three.

It provides for three.

The rule provides for three.

Justice Tom C. Clark: (Inaudible)

Mr. Roger P. Marquis: Oh, yes.

That's -- that's what our case is because we say we don't know how you reach your figure.

Justice Tom C. Clark: Well, I hear you but, based on our (Inaudible).

Mr. Roger P. Marquis: No, no.

No, no this -- this commission is not to go outside the evidence.

In our view, this is a judicial commission.

This is a judicial fact-finder.

They are not to use their personal knowledge and go outside the evidence and reach their result on some basis whether this is their own opinion as a real estate appraiser or whether it's knowledge they get from other places.

This is the only judicial trial as to compensation.

And in our view, it has to be on the same basis and I think this is one thing, I think that all of the lower courts have agreed upon that this is tested by the ordinary standards of judicial adjudication.

It isn't simply a personal appraisal and that's -- as I adverted to a moment ago, that's the difference with -- between state law.

But that is the kind of a commission that almost all of these state laws where there is the dual first board of commission or board of appraiser or board of view and then a right to an entirely new judicial adjudication on a jury trial de novo.

Now there, the informal non-judicial type of adjudication was perfectly proper because it was simply tentative estimates, similar to our federal declaration of taking procedure.

But --

Unknown Speaker: (Inaudible)

Mr. Roger P. Marquis: No, no -- no, no there's plenty of room.

There's no -- a commission is not bound by any of the testimony of any particular expert.

They can use their matter of judgment within the range of the evidence in their record, and that's the function which our view has.

But as Jerome Frank put it in one case where they were saying that evaluation is just a guess, but he says the guess must have the rational foundation.

It can't just be a figure out of the air or it can't, as in this case of ours where we have a formula used by one of the witnesses Mr. Wilcox, it can't be a formula that is irrational.

Now here, we had the landowners who -- these clearance easements are imposed at varying heights over various tracts of land.

One of them is from 105 feet up to 165 feet.

It's quite high in the air over this farm.

There's no interference with farming.

Yet, the landowners all in each instance came in and said -- each said, “My land is depreciated in value of 50% by impositions of those easements.”

Now, I think, if the commission had said, “We agree with the landowners that each of them is depreciated 50% even though it's 100 feet above Mr. Smith's property and it's only 13 feet above Mr. Merz's property.”

I think that would be an irrational decision which would appear from the report when the commission tells us what basis they used to arrive at their result.

And that is the obligation we say for example, within reason and of course I'm not saying they have to go into all of minutia of course not.

But, within reason we had comparable sales here that were relied upon by both parties.

We had some.

They had a few.

We had much more as we usually do, one of them was a sale of property right next door to the Merz's property.

We think there should be some indication whether the Commission gave weight to comparable sales and if so, just what sales they did and didn't consider.

So that then, that evidence can be weighed.

Justice Potter Stewart: Can I ask you how these Commissioners are compensated?

Mr. Roger P. Marquis: Their fees are set by the courts and there is a separate appropriation now.

That was one matter that's given us some difficulty in the last two or three Congresses on the matter of the appropriation.

There is a separate fund that's appropriated which -- in the Department of Justice appropriation and they're paid from that fund.

Justice Potter Stewart: And the fees are set by the court on an auditable basis?

Mr. Roger P. Marquis: The an -- individual basis and they vary greatly throughout the country.

Justice Potter Stewart: Per diem or how?

Mr. Roger P. Marquis: Very often, they may be.

A great many of them are set on a per diem at the time of appointment.

Others are set after the report has been made.

On the basis of what their services were, there was one case in the Second Circuit where, amongst other things there was a question on appeal as to the amount of their fees for the commissioners' appeal because they weren't allowed to know and the Second Circuit raised this.

Justice Potter Stewart: Are there considerable disparities throughout the country and as among various district judges that handle this?

Mr. Roger P. Marquis: Oh yes, there is a range from -- for example from -- I know I've seen a sum of $30 a day and, a great many of them, up to $100 a day.

So that there is a 300% range.

Justice Potter Stewart: Just as there are in criminal sentences.

Mr. Roger P. Marquis: That's right, there's a -- it -- of course it depends on region but it also depends on personal approach and so many other factors.

Turning just --

Justice Hugo L. Black: (Inaudible)

Mr. Roger P. Marquis: Sure.

Justice Hugo L. Black: (Inaudible)

Mr. Roger P. Marquis: The District Judges do this.

Here again, we get into practice.

Some of them give instructions, general instructions, at the time they appoint the commission or sometime later on general principles of condemnation law.

Others of them, for example in this record, there's no instructions at all given.

The difficulty there is of course, that they are not cued to the precise issues or the precise evidence in the cases.

They're simply generalizations and for example, we've had in one of the cases we cite, the Muller case where the commission itself recited these general principles and said, "We filed them in our report but when after going to the court of appeals we got a specific report as to what we did, the court of appeals agreed with us the second time that they simply had misapplied the principles.”

So that we don't have -- as example in a jury case, we don't have the instructions given tied to and relating to the special evidence in the case because the judge hasn't been there during the trial.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roger P. Marquis: Oh no, that's just like the jury I think that -- and certainly that is the concept of -- in jury cases and -- many times the judges in judge-tried cases too, we -- of which we have quite a few.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roger P. Marquis: The difference of course with the jury is that you have rulings -- you have your rulings on inadmissibility of evidence, which is one of our prime means of confining the evidence to just what is involved.

You have your instructions.

You have the judge's presence so that his abil -- his authority to grant a new trial to escape just irrational or I'll result to that sort.

And, you have the fact which I think is important here too.

The fact that a jury trial commences, they remain together, and you come in with a verdict so that extraneous influences are at a minimum.

These commissioners uniformly even when as here they had a five-day hearing, they go off about their business and two months later as in this case, render their original report and then, a year later, that they supplemented it.

So that, without making any invidious charges that their human nature in the business, they're subjected to many influences and the evidence be -- tends to become something that happened in the past by the time they come to making a report.

Justice John M. Harlan: (Inaudible)

Mr. Roger P. Marquis: Oh, yes.

Justice John M. Harlan: Witnesses.

Mr. Roger P. Marquis: Oh yes, there are this record -- this record has the full transcript of the testimony just as with a jury trial.

Unknown Speaker: Just exactly what we have here.

(Inaudible)

Mr. Roger P. Marquis: Sometimes, sometimes not.

We have just -- we've -- here he did, that's right.

Unknown Speaker: He found (Inaudible)

Mr. Roger P. Marquis: Well, he simply said here “I've decided to confirm the report.”

His letter said no more than that and we have -- quite basically, our complaint is that even here before this Court, through all the commission and the courts, we have never been affirmably told how did the commission reach these figures, some of which are down to the odd dollar.

There's one that is $33, another one is 507 -- $7,510, something like that.

And our point is that we can't judicially review such a thing, unless we know, unless we're told how they arrived at that amount.

They were said -- the only one thing that is said is that they followed a before and after process, which is what you do.

You -- we value the land before imposition of the easement, there was great controversy on that and the value of the land after imposition of the easement.

Justice William J. Brennan: Are you supposed to do that in every case?

Mr. Roger P. Marquis: No, in an easement case.

Justice William J. Brennan: Yes.

Mr. Roger P. Marquis: Yes, that's the way you must value and that the only --

Justice Potter Stewart: The only -- only allowable way to value in easement, value of an easement?

Mr. Roger P. Marquis: I've never seen a record that had come up with any other thing except this formula which this witness had.

Justice Potter Stewart: But which you say is erroneous.

Mr. Roger P. Marquis: That's right.

That's right.

And I don't know of any other way you value an easement except to determine the damage to the land because of the imposition of the easement by determining the value before and after, yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roger P. Marquis: Well, I hadn't -- the terms --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roger P. Marquis: Well, I hadn't -- i hadn't -- specifically analogized.

I hadn't intended to analogize it to an administrative agency anymore than I would analogize it to a district judge.

It's a fact-finder.

It's a judicial adjudication of this particular fact.

But I do think what we do say is, because of the differences in the way that they proceed, the requirements they're applicable to district judges and to all other fact-finders administrative agencies, district judges, court of claims, and all other fact-finders other than a jury for purposes of judicial review are necessary because in the jury case, we have our other means which have -- may have developed over our centuries of law as to assuring of correct principles being applied.

In that connection, this matter of the formula is very important.

I think it is very illustrative.

You would never in the world get a jury trial where the court of appeals could say, “We conclude simply from the trial that the jury ignored 50% of the landowners' testimony.”

That's what they -- the Court of Appeals has said about the Wilcox's formula.

They said they admit the -- it's probably a no good valuation but they simply say, “We don't think the commission gave it credit.”

The rule in jury trials would be very clear that this would be reversible in a jury trial because the rule is that an error as to admission of evidence, which goes to a substantiality, has to be something substantial, yes.

But, an error and particularly in condemnation, case after case we have where the reversal in a jury trial is because an element of value was allowed to be brought in which shouldn't have been a claim of value -- a contention of value which should've been excluded.

And, presumptively, we -- no one knows unless we ask the jury whether it affected their result or not.

Therefore, presumptively it did affect the verdict and it must be reversed.

Now, that's the difference in the jury trial.

We don't have that, and that's why we think to supply the judicial review that would exist in the other direction in the jury trial.

Then we turn to the requirements that have been developed as to all other fact-finders and that is the finding of what facts and how we got to our result, not just our ultimate result.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roger P. Marquis: That's right sir.

Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roger P. Marquis: Actually here, the record shows that they had originally, in their answers asked for a jury trial and then later they made the motion for appointment of a commission that's right and it's not infrequent practice in various places, although the rule doesn't specifically provide for it.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roger P. Marquis: No, I don't think so.

There is a docket entry that shows earlier at pretrial the judge had decided to have a commission.

Now, just what the landowner's position was at that hearing I don't know.

That isn't in this printed record here.

It's in the docket entries.

Unknown Speaker: (Inaudible)

Mr. Roger P. Marquis: That's right.

That's right, it was -- it was a rare objection and the record contains the landowner's motion.

That's correct.

Unknown Speaker: (Inaudible)

Mr. Roger P. Marquis: Not at all, Your Honor.

Not at all.

We don't -- let me put it this way, and this has lead to a lot of misunderstanding.

Under the rule, it says that the objection must be made within 20 days of time to answer.

And, we had always construed that when the rule went into effect as for purposes of the record acquire -- requiring us to object to the point of the commission on the bottom of our complaints, and that's what we have been doing.

Not that we insisted upon it later on when the -- it became clear to us what the case was and what it was about and what the situation was, we have not insisted on juries in every case by any means.

As a matter of fact, we've devised -- which we think is a substitute for this problem of the commissions which many think expedite and which we think delay things, we have a program whereby we submit to the court without a jury these smaller cases and we get rid of them on the calendars and we've reduced our standing workload one-third by doing it.

So that we do not ask in every case by any means insist on commission -- on jury or dully object to many instances to use of commissions.

We do think that, to make it effective and to make a true judicial evaluation, that we should be told how they reach their result.

That's the basic case that we have here.

Justice John M. Harlan: (Inaudible) -- they ought to write an opinion in this case.

Mr. Roger P. Marquis: It's -- there are various -- it's very --

Justice John M. Harlan: That's one way of putting it.

Mr. Roger P. Marquis: It's not too remote from the opinion which starts out and tells you what's involved in the case and then tells you what happens.

As -- I don't think it should be too difficult and it's to the extent that is.

It's a discipline in putting down on the paper what your vague notions may be.

Justice John M. Harlan: (Inaudible)

Mr. Roger P. Marquis: I think that that's in effect which you'd require of findings of fact and conclusions of law.

I think quite clearly in evaluation case, certainly in the court of claims cases.

Justice John M. Harlan: Well --

Mr. Roger P. Marquis: For example or in other evaluations.

Justice John M. Harlan: What I was getting at is, if one of these commissions makes findings of facts and conclusions of law that satisfies your test?

Mr. Roger P. Marquis: If they give us satisfactory findings and conclusion which show what they relied on to reach their result and gives us some assurance that they weren't going outside of the record or they weren't relying on matters that we thought was objectionable or irrational, that's what we want.

Justice John M. Harlan: Made findings of fact in detail -- in detail and then ended up with the conclusion of law, as in Virginia and on this basis, they think the award should be this itself.

That would not satisfy it.

Mr. Roger P. Marquis: That's the second case we have tomorrow.

They did write, of what we think is perfectly acceptable, a statement of what the case is all about.

They did not however, set it -- settled the controversies between the parties.

And that is the ground on which we object to that report that they've got to do the two things.

They've got to tell us what the case is about and they've got to tell us what the -- how they resolved what the parties were controverting about.

In a --

Justice Arthur J. Goldberg: That gives the (Inaudible) decision in his argument (Inaudible), just on the one side, (Inaudible) not just to the other side (Inaudible) the commission must make a choice (Inaudible) is resolved.

(Inaudible) they also make their choice and not (Inaudible)

Mr. Roger P. Marquis: Oh no, I'm not --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roger P. Marquis: Oh no, I'm not saying that they have to simply choose between the -- between the two sides in their expert opinion.

No, they weigh the expert's opinion.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roger P. Marquis: And they can very reasonably --

Justice Arthur J. Goldberg: (Inaudible) in theory if the commission had come in and say (Inaudible)

Mr. Roger P. Marquis: Well Your Honor, you're putting the case which we have been trying for 20 years to eliminate in this.

That may sound strange but it is exactly the campaign we've been on that merely an expert getting on the stand a nd given a figure is no evidence at all.

And, the appraisers in the -- the respectable appraisers recognize that.

That the worth of that appraisal depends upon the basis for instance, the comparable sales and that's one thing we keep emphasizing.

We bring out the sales that were in the area.

We have a map and we put them on the -- we illustrate with the comparable sales and then we have a basis of judging that opinion.

Now, I'm not saying that there, in most of these cases, it well -- may well be that the courts will say, “Well, we think the government appraisers were a little bit low.

They didn't give quite enough weight to this sale a half-mile down the road, but the landowners' appraisers, they were too high.

They ignored these other four sales that were a mile in the direction.”

And --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roger P. Marquis: Well, we -- we have all sorts of cases that get in the varying degrees of difficulty.

But in these farmland sales, for instance if you're looking in front of these cases we -- they're here before us on in this ap -- on these two cases.

We will find comparable sales, one of them is next door to the Merz's property, and we have several sales showing a pattern.

That's what we're after.

And --

Justice Arthur J. Goldberg: Do you exclude (Inaudible)

Mr. Roger P. Marquis: I -- no, no we don't exclude.

We say sure, they're going to compromise in many, many cases but the compromise has got be on a rational basis.

It's like you can't have a quotient verdict.

You can't just add them all together and divide it by two.

Unknown Speaker: You can if you (Inaudible)

Mr. Roger P. Marquis: Well, I --

Unknown Speaker: (Inaudible)

Mr. Roger P. Marquis: Well, there's the possibility but I personally, in 25 years of working on this subject of security, great competence in the triers of fact in working out rational and, at least, reasonable results if properly guided.

I think I'm -- personally, I think it's a lot better than a lot of people -- critics of it think it is.

Justice Byron R. White: If there was a --

Mr. Roger P. Marquis: But --

Justice Byron R. White: -- I suppose the commission and actually, the company of (Inaudible)

Mr. Roger P. Marquis: If they said we simply follow this appraisal report, then, the question would be the validity of that report and whether it was irrational to reject everything else.

Justice Byron R. White: Certainly, (Inaudible)

Mr. Roger P. Marquis: I don't think they would agree in these normal cases.

You could disagree that far.

Justice Byron R. White: In normal cases?

Mr. Roger P. Marquis: I don't think that they would -- not 4 and 5 to 1, I mean --

Justice Byron R. White: (Inaudible)

Mr. Roger P. Marquis: Unless there's some element and it's very debatable or something like that.

I don't think you would get such a spread but if the --

Justice Byron R. White: Now, what (Inaudible)

Mr. Roger P. Marquis: If they did.

Justice Byron R. White: (Inaudible)

Mr. Roger P. Marquis: Well, the first thing we want in --

Justice Byron R. White: (Inaudible)

Mr. Roger P. Marquis: Well -- well they could've -- first of all, they could've given us the value per acre of the Merz's property before we imposed the easement.

There was a great controversy on that.

They could've given us the value of the property after we imposed the easement.

The --

Justice Byron R. White: (Inaudible)

Mr. Roger P. Marquis: But, we don't know how they got that.

At least we'd know that.

We don't know whether they took 250,000 or 200,000 or 300,000 acre on the Merz's property.

There was evidence of 300,000 acres, but we don't know whether they took that or whether they took 200 and their bigger difference is in their subtraction.

It's in the diminution.

We -- we just can't tell on these figures.

We use -- we know they must have used some system because they came out to figures like, as I say, one of them is $5,733.

Well they got there some place or they took a figure out of the air which would be wrong and unreasonable.

So that's what we'd want to know.

Another thing we want there are several things in here which we've mentioned in the record.

We want to know where they relied on this witness, Wilcox.

We had a motion to strike it on several grounds, both because of the formula and because he wasn't qualified because he didn't look at sales in the area and, in fact, in one place in the record, he says “I made my opinion and I went out looking for sales to support it.”

All those things we think we're entitled to note and to know whether the value was arrived at fairly and with regard to the law or not.

I see my time is up.

Unless there are other questions why we submit that we should be told by somebody where these figures came from?

Chief Justice Earl Warren: Mr. Meacham.

Argument of Denver W. Meacham

Mr. Denver W. Meacham: May it please the Court.

I'm at a decided disadvantage as a country lawyer who's concerned with these people in this particular case and so far, the discussion has had to do with the broader picture.

I think it -- this case, of course, will be decided according to the rule the way it is now and I find it helpful to review the general principles just very briefly that are involved.

Our mission in this case is to decide the just compensation to these particular people for the clearance easements that were taken on their property eight years ago and which have been in litigation ever since that time.

There's no dispute that we arrived at that just compensation by taking the fair cash market value which is what a man who wanted to buy this property would pay the landowner if he wanted to sell and which is, let's face it, is an informed estimate.

We accrued ourselves to some degree.

It's just our best guess.

That's what we're trying to do.

Now, the rule say 71A (h) says that this Court authorizes the appointment of one of these commissions.

The rule say that that commission will try the facts will arrive at a judgment as to the amount of what they find and that the appellate court will -- and that the district court will approve that report.

If there are no objections to that report, if that report is clear -- not clearly erroneous.

So, it seems to me that logically we're at the point in this case where we determine whether the facts as found by this commission and the law as found by this commission are clearly erroneous.

Now, another thing your rule says, your rule says that if an objection is made to this report that the Government must object and tell the court of what the objection is.

In this case, the objection to the Government as to the report which originally was a report that just found there was so much.

In this report, these commissioners which were composed of two lawyers and one real-estate man found that they had tried this case, that they had viewed the land and they had arrived at just compensation in these following specific amounts.

The Government object to that report and said there's no specific findings of fact and conclusions of law.

So, the commission filed another report and in this report.

To me, they -- they tell this Court precisely what they did.

They said the highest and best use of this property was for agriculture purposes.

Justice Potter Stewart: Is there any issue about that?

Mr. Denver W. Meacham: No, sir.

There was -- except as to one track, there was some sand on one track and they also found as to that particular track that -- that we were wrong and that the highest and best --

Justice Potter Stewart: But as to the estimate line share of the property, there was no controversy.

Mr. Denver W. Meacham: That is correct, but they were, Justice Stewart, detailing the steps that they were following, which is just what the Government wants them to do.

There --

Justice Potter Stewart: The Government wants them to do a little more than that --

Mr. Denver W. Meacham: Yes sir.

Justice Potter Stewart: Or this case wouldn't be here.

Mr. Denver W. Meacham: That's right.

They -- they gave the highest and best use.

They gave -- they said, “Now, we're going to do it on the basis of the difference in the fair case market value.

We aren't going to pay any attention to any airplane activity above the ceilings which are placed on this line.”

They said, “We did not feel that there was any sufficient proof of any use as to the sand on two of the tracts involved in here.”

Now, the Government now, at this time, says this in their briefs in this Court, they say, “We want the Court to say what was the market value of the land before the taking.”

In their objections to the report, here's what they say.

The reports wholly fail to make specific findings as to the facts on which the commission based its evaluation and failed to show how they applied applicable principles of law to the facts in reaching their ultimate conclusions.

The reports wholly fail to show that all comp -- incompetent and inadmissible testimony was disregarded.

The reports wholly fail to show how controverted testimony was resolved, if it were, in arriving at evaluations and are, therefore, deficient and inadequate.

The reports taken as a whole amount to no more than a general verdict of a jury since no specific findings of any controverted issues were made, the only specific findings being as to those matters which were stipulated to by the parties to this action.

Therefore, the reports are wholly inadequate to furnish an adequate basis for you by the trial judge or an appellate court.

Now, our contention is that the Government is inconsistent.

The Government in the report that the commissioners make says, “You gentlemen should be specific and explain your arithmetic.

You should explain your philosophy as you reach this result.”

On the other hand, when it comes to objecting to the report, they say just a broad objection is sufficient and, to me, that's inconsistent.

The notion of a commission, and incidentally the Government has always objected to the enactment of this rule, the notion of a commission is in people like my clients who live 100 miles away from where the district court sets whose land is there, that this commission can come out and look at the land and get a better notion of it and thereby expedite the payment of just compensation.

Now, in this particularly case, the fact has been just to the contrary.

We have people with a total award of $27,183 who'd been in litigation for eight years when their property was taken in March of 1956.

If -- if the notion of the rule is to expedite, then the Government at the time it accepts to the reports should say, “Fellows, why didn't you say the before and after market value?

Why didn't you say these other specifics that they now ask for the first time that go in this report?”

If they had have asked for those things, the commission would've supplied them and that would all be all there was to this case.

Now in the matter of the report itself and as Justice Goldberg was approaching the problem a minute ago.

Here's the picture I give.

I'm a commissioner.

I try this suit.

The landowners testify.

In this case, the landowners somehow made a limit of their 50 years and just because they're party to the suit doesn't make them lawyers, it doesn't make them completely incompetent, but you do take what they have to say with a grain of salt.

The landowners testify, Mr. Wilcox testifies, the Government has an expert to the Kansas City of Missouri who lives 500 or 600 miles from this.

He testifies, a very expensive expert.

The Government has another expert testify.

You have these various experts testify.

I'm a commissioner.

I hear this testimony.

And then, I get out and I look at this land.

I look at the property that is involved in comparable sales and I take that into account.

And then, of my own -- I make a decision as to this value.

Maybe this landowner, I say he's -- I'll take what he says with a grain of salt or he didn't have the right notions about it.

I will -- I'll pay 10% to him.

I'll pay 50% to him.

I'll pay 30% to the fact I viewed the property.

I'll do all these things.

Well, surely, it's not necessary for the commission to give weight to these various things that entered into their decision.

In this case, the District Court felt that there was sufficient findings of fact and conclusions of law to enable him to review the decision.

Judge Phillips and Judge Picket and Judge Lewis in the Circuit Court of Appeals examined these findings of fact and conclusions of law and they felt that there were sufficient things that would make it possible for them to review these findings as to the amount of this compensation and not have any feeling that the commission grabbed the value out of the sky or anything of that sort.

It is admitted by the Government that all of these values are well -- there is no contention that these values are excessive.

All of these values are well within the range of the testimony.

It's also when you read this very dull looking and very tiresome record which is an imposition on you gentlemen, you find that there is various little references in the Government brief that things that the commission did that was wrong.

For instance, they said they took the testimony of the authors.

You find in this record when you read it that, at pages 74 and 118, there's only two references of authors.

One of them, the Government -- the only thing involving authors was -- thank you, sir.

Print this transcript Transcript: 

Argument of Denver W. Meacham

Chief Justice Earl Warren: United States, Petitioner versus Louis T. Merz, et al.

Mr. Meacham, you may continue your argument.

Mr. Denver W. Meacham: If the Court please.

At the adjournment yesterday, we were talking about specific items of evidence which the Government felt was incompetent that was allowed to go before the Commission in which they may have used in their determination of just compensation.

The first of this as mentioned -- mentioned in their petition but not mentioned in their brief and it has to do with offers.

The Government contends that offers were introduced in evidence and they may have been used.

The situation with regard to offer is at page 74 of the record, an effort was made to prove that there were no offers, and for that reason there was a depreciation in market value.

There was no longer any demand.

At that place in the record, the Court sustained the Government's objection and no evidence was entered in evidence.

Again at page 118 with respect to tract 124 (e), the witness there again -- an effort was made to prove that he did has some offers prior to the taking of the easement that he had no offers afterwards.

No dollars and cents were mentioned.

No -- no amount was mentioned.

It was merely an effort to show that there had -- there was a decrease demand and therefore diminution in market value.

At that place, the Court did allow that evidence.

I submit to this Court that that would in no way, prejudice the Commission would be nothing.

There were no dollars and cents, nothing that would, in any way, color the finding of the Commission.

The other item they mentioned both in their petition and in their brief is the managerial skill.

The Government felt that one of the witnesses took into account managerial skill and that this would be a nontransferable and therefore, it would not be a proper item to base just compensation.

The evidence on that is at page 170 of the record and here is the evidence on that.

The evidence, this witness testified that a farmer who properly farmed his farm would have a better looking farm and therefore it would have better market value.

Our used car lots here and all across the nation are examples of the fact that when you shine a piece of property up it does have an increased market value.

And I submit to this Court that that is not incompetent and that in no way colors the determination by this Commission of just compensation.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Denver W. Meacham: Yes, sir, I'm sorry.

I'm sorry for the misnomer.

He wasn't commissioned, yes, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Denver W. Meacham: Yes, sir, that's right.

The Chairman of the Commission was an attorney, another member of the Commission was an attorney and they rule on evidence as they go.

In this instance, in this particular case, there were two instances in which they did not rule on the evidence and in their findings to find that they did along those particular items.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Denver W. Meacham: I think the -- the objective party could file any exception and specify this particular specification and submit that argument to the District Judge when he makes his finding.

Justice Tom C. Clark: (Inaudible)

Mr. Denver W. Meacham: Sir?

Justice Tom C. Clark: (Inaudible)

Mr. Denver W. Meacham: No, sir and there's no requirement in your rules that any of them -- the attorneys, I think the practice is and Mr. Marquis of course knows much more about what the practices in this particular case, two are lawyers and one was a real estate man.

Unknown Speaker: (Inaudible)

Mr. Denver W. Meacham: Yes, sir, I feel that the report should be sufficient for the appellate court to know what this Commission did but I feel very strongly in this part --

Unknown Speaker: (Inaudible)

Mr. Denver W. Meacham: Yes sir, in this particular case, that these reports do meet that rule.

Now, we have the auxiliary, the ancillary contention in this Court that the Government should've specified the particulars in which they felt it was -- was not sufficient.

But I have no quarrel with the rule that the appellate court should know to have sufficient findings of fact and conclusion of law to know what this Commission decided.

Justice Byron R. White: (Inaudible)

Mr. Denver W. Meacham: No sir.

I think we rise and fall unless they --

Justice Byron R. White: (Inaudible)

Mr. Denver W. Meacham: Yes, sir.

Your rules have --

Justice Byron R. White: (Inaudible)

Mr. Denver W. Meacham: That is correct.

I have no quarrel with that law.

That's a well established law and I think it's a very good law.

Justice Byron R. White: (Inaudible)

Mr. Denver W. Meacham: Yes, sir.

I do quarrel with the Fifth Circuit holding in the case that follows with this.

Justice Byron R. White: Why is that?

Mr. Denver W. Meacham: I -- I think they were too stringent in the requirements as to the findings of fact.

Justice Byron R. White: They were just -- they were just decided that there's a general rule that the finding should be adequate for appellate review on different facts and different cases that of course deal -- it might -- might come out of the way to look just (Inaudible) because the facts are different.

Mr. Denver W. Meacham: They're -- they're general principles, I agree with.

Their application of those principles I disagree with.

I -- I find no fault with their general principles.

That case -- in that case, they relied heavily on United States versus Lewis.

And if the Court will read that case, as we've stated in our brief, then as Mr. Champion has stated in his brief, you'll find in the Lewis case, the Ninth Circuit specifically says, "We do not feel it's necessary that the Commission find how they treated these -- these particular elements of -- of that enter into the ultimate just compensation that we discussed here yesterday in our brief.

You'll find that in Lewis case, it does not support the conclusion that the Fifth Circuit reaches.

Now, there's been some talk along this line that we've been just now discussing that there's a great difference of opinion in the various Circuit Courts of Appeal as to this particular manner.

Now, I think you'll find, as I did, when you examine these cases that this difference of opinion is more imaginary than real.

Their only difference of opinion is between the Tenth Circuit and the Fifth Circuit on the two cases that you have before you today.

Now, all of the other cases are easily distinguishable because complexities enter in -- for instance there -- there might be a question of severance damage which there wasn't in our particular case.

There maybe a question of special benefits and in all those cases was the -- upon which the Government relies.

You will find that in -- in each of those cases, I think and perhaps all of them, at least all of them for -- with -- with one possible exception, the Commission did not find what the highest and best use was.

The Government -- the Commission did not find how they treated severance damages.

The Commission did not find how they treated the problem of special benefits.

Now our case is a very simple case.

It has none of these complexities that enter into it and it's our contention that the opinion, as given by the Tenth Circuit, is very concise, very precise, and very objective, and each statement in that opinion, you will find, is under guarded with a citation which specifically supports that conclusion.

Now on the other hand, with all due respects to the Fifth Circuit opinion in the case that is to follow, you'll find that the citations there do not support the position the Court takes in this particular case, in that particular case.

It's our contention that there is no conflict in any of the circuits with -- with respect to the sufficiency of findings of fact except the conflict that you have before you today in this case and in the case that is to follow.

I think the true rule as Justice White contented, I think that the true rule is that you take each particular fact situation and you determine it on that basis.

And you do not lay down broad general principles and then decide each case on those principles.

I think each case varies and for that reason, you can't reach that result.

I do think as it happened in the Fifth Circuit, but as -- did not happen in my case, that it would be more regular if the District Court when he appointed the Commission, gave them detailed instructions as to what they should do and what they should not do after his out-o- pretrial conference and in that conference, determined the issues that they will be faced with and give them instructions.

I think that would be the better -- better practice.

But the fact that that did not happen, in my particular case, does not mean that these findings of fact and conclusions of law are sufficient -- are insufficient.

The District Judge was able, by looking at our findings of fact and conclusions of law, to satisfy himself that -- that he knew what they have done and that it was not clearly erroneous.

Again, the Circuit Court of Appeals was able to look at the findings of fact and the conclusions of law of this Commission and they were satisfied.

I think those two things enter into the question and tend to prove that these findings of fact and conclusions below were sufficient.

I appreciate greatly your courtesy, your attention to these cases.

I sincerely and earnestly urge this Court to put a -- an end to this extended litigation that has gone on since March of 1956 for none at all amounts of just compensation that has been fixed for my people has become purely an academic matter at this stage because of the extended litigation in which they have been forced to extend.

I thank you very much.