Malone v. Bowdoin

PETITIONER:Malone
RESPONDENT:Bowdoin
LOCATION:South Carolina State House

DOCKET NO.: 113
DECIDED BY: Warren Court (1962)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 369 US 643 (1962)
ARGUED: Mar 20, 1962
DECIDED: May 14, 1962

Facts of the case

Question

Audio Transcription for Oral Argument – March 20, 1962 in Malone v. Bowdoin

Earl Warren:

Number 113, Buford Malone, Jr., Petitioner, versus James A. Bowdoin.

Mr. Friedman.

Daniel M. Friedman:

Mr. Chief Justice, may it please the Court.

This case, here on a writ of certiorari to the Fifth Circuit, once again brings before the Court the perplexing problem of when an action brought against a government official to restrain acts done in his official capacity is in fact an action against the United States which cannot be maintained in the absence of consent by the United States.

Specifically, the question in this case is whether an action may be maintained to reject a federal officer from land that he holds in his official capacity and the basic facts are simple.

The petitioner in this case, Mr. Malone, is a Forest Service Officer in the United States Forest Service.

In 1959, the respondents instituted an action in the State Courts of Georgia an ejectment to eject the petitioner from certain lands.

The action was brought in the traditional fictitious form which is employed in Georgia that is the complaint alleged that the respondents had demised the land to one John Doe that when John Doe had entered onto to the land and then that one Richard Roe had forcibly evicted him from it.

And under the settled practice in Georgia in that kind of a case, the real party in interest, the respondent, is not permitted to challenge any of these allegations.

He asked to admit the fact one of the least, two, the fact of entry into possession and three, the fact of the ouster and as we have indicated in our brief in — under the Georgia practice, this is a method by which basically the title to land is determined.

The Government and, I might mention that the process in the case was served upon both the petitioner, Mr. Malone and upon the United States, the Government removed the case from the state court to the federal court.

And in its petition for removal, which is set forth at pages one and two of the record, the Government alleged that it had acquired the land by a deed in 1936 that since that time, it had lawfully owned and possessed the same and that the petitioner, Mr. Malone, at all times held the land solely by virtue of his official position and under color of his office.

After the case had been removed into the District Court, the United States and the petitioner then moved to dismiss the case on the ground that the suit was one directed against the United States and the United States have not consented.

And after a pretrial conference and a hearing, the District Court granted the motion to dismiss.

The District Court pointed out that at the pretrial conference, the respondent’s counsel had conceded the correctness of the allegations in the petition for removal that at all times the petitioner, Mr. Malone, held the land by virtue of the color of his office and as result of his official position.

And the court ruled that on the basis of those facts, this case was controlled by the court’s decision of this Court in Larson against Domestic and Foreign Commerce Corporation in 337 U.S. about which I will have much to say shortly and that accordingly, it was a suit against the United States.

A divided Court of Appeals for the Fifth Circuit reversed.

And I think a fair reading of the opinion of the Fifth Circuit is that in the court’s view, this case was not controlled by Larson but was controlled by the earlier decision of this Court in United States against Lee in 106.

And so we think this case, as it comes to this Court, presents fairly the question whether in this type of a situation, this Court’s decision in Larson controls or whether the Lee case controls and I’d like briefly —

Felix Frankfurter:

What does Larson leave of the (Voice Overlap), won’t you?

Daniel M. Friedman:

Yes, I think it is left virtually nothing Mr. Justice at least in its application to this type of case.

I like to refer briefly to the facts in the Larson case.

In the Larson case, the War Assets Administrator had entered into a contract to sell certain surplus coal of the Government to the Domestic and Foreign Commerce Corporation.

A dispute arose between the Administrator and the Foreign Commerce Corporation over the terms of the contract and the Administrator ultimately concluded that the contract had been breached.

He then undertook to sell the coal to someone else.

The company instituted a suit in the District Court to enjoin the Administrator from doing this on the theory first, that there had been no breach of the contract and secondly, that under the terms of the contract, title had passed to the company, and therefore, that what the Administrator was trying to do was improperly to dispose of property which belonged to the company.

This Court, after a thorough review of the authorities in the case in this field, concluded that this was in fact a suit against the United States, and therefore, could not be maintained and the Court enunciated the basic principle that where an action to compel specific relief for — against a government official, acting in his official capacity, is brought, it is in fact the suit against the sovereign unless one of two conditions is met, either that it’s alleged and shown, and the court said it had to be specifically alleged, that the officer is acting beyond the scope of his authority or secondly, if the officer is acting within the purported scope of his authority that such authority is unconstitutional.

In other words, in those two situations, relief maybe had against the officer and that it is not relief against the sovereign because the relief is sought against conduct that is beyond the officer’s authority, either the officer’s actual authority or the officer’s valid authority and in that situation, the actions of the officer are not fairly viewed as the actions of the sovereign.

Now, in this case, we think it’s clear that neither of those conditions has been satisfied.

There’s no allegation here and no claim that Mr. Malone in holding this land in his official capacity is acting beyond the scope of his authority.

Daniel M. Friedman:

Indeed, to the contrary, the respondents admitted in the District Court that Mr. Malone was acting solely by virtue of his official position.

Potter Stewart:

This is a land on the adminis — by the Department of Agriculture, is it?

Daniel M. Friedman:

Yes Mr. Justice, the Forest Service.

Potter Stewart:

Which is under the Department of Agriculture?

Daniel M. Friedman:

Yes.

Potter Stewart:

Not interior?

Daniel M. Friedman:

No, the Forest Service is under the Department of Agriculture.

Potter Stewart:

And this is a national forest?

Daniel M. Friedman:

The — at the time of this suit, this was something called “a land utilization project”.

As I understand it, since this suit was brought, it has become a part of something called the Oconee National Forest.

There are 109 acres involved in this land.

Nor is there any allegation, and we do not think there could be any showing that Mr. Malone in this case is acting unconstitutionally.

The only possible theory upon which it could be contended that there is any unconstitutional holding of this land by the petitioner is that the land was being held or taken without permitting the respondent’s just compensation.

And there’s no claim made to that effect and we think that such a claim could not be made here because if the allegation is and this is the claim that the Government is illegally holding this land, presumably the illegal taking of the land occurred in 1936 when the Government acquired this property by deed.

And we believe that as of — as of the present time at least and some time thereafter, at least as of 1936, at that time if there was such a taking, the respondents had an adequate remedy by a suit for just compensation.

We also believe that upon passage of the Tort Claims Act, if in fact Mr. Malone was improperly upon the respondent’s land, at that point an action for trespass might have been maintained.

Now, the — neither of these is the theory upon which the respondents seek to maintain this action —

Potter Stewart:

They’re what?

Trespass or what (Voice Overlap)–

Daniel M. Friedman:

No, no, Mr. — the respondents do not claim either that the petitioner is acting beyond his authority —

Potter Stewart:

Or —

Daniel M. Friedman:

— and the statutory sense —

Felix Frankfurter:

Or acting unconstitutionally?

Daniel M. Friedman:

Or acting unconstitutionally.

What they are claiming is, basically, that he is acting tortuously that he is holding land which in good conscience belongs to them.

They claim under a claim of title dating back to a will of 1857.

Potter Stewart:

That he is in possession.

This is an ordinary action of ejectment?

Daniel M. Friedman:

An ejectment that’s correct.

It’s as though they claim in fact that it’s their land and they want to —

Potter Stewart:

He’s — he’s wrongfully in possession.

Daniel M. Friedman:

He is wrongfully in possession.

Now, we think this specific suggestion that a suit of this type may be maintained was prese — was rejected in the Larson case and quite explicitly.

In Larson, the Court stated that it would not permit what it called a third category of cases against which an action might be brought against a government official.

And the Court stated at page 692 of its opinion as the third category of cases where the official, “Wrongfully takes or holds a specific property to which the plaintiff has title” and on that — that theory that it would be a tort.

And the Court stated, I might mention preliminarily in the discussion of the different types of situations in the Larson case to which the bar of sovereign immunity is not applicable.

The Court specifically referred to actions of ejectment.

The Court pointed out in its opinion that the problem in this field arose not in connection with a suit for damages because that — in that case where the officer is held personally liable for damages, that will not impinge on the sovereign’s property, but in other types of action where action of the officer is sought to be restrained or directed and it mentioned as one of the types of these action — actions for ejectment.

The Court stated in the Larson case that the mere allegation of the officer, acting officially, wrongfully holds property to which the plaintiff has title, does not meet the requirement in this field that it must also appear that the action to be restrained or directed is not the action of the sovereign.

The point continued that since — if the officer is exercising such powers that is, the powers delegated to him by the sovereign, the action is the sovereign’s and a suit to enjoin it may not be brought until the sovereign has consented.

I think the rationale of that ruling is this, that as long as the officer is acting within the scope of his valid authority, he is in fact acting for the sovereign and if he is acting for the sovereign, his action may not be interfered with unless the sovereign has consented.

And the —

Felix Frankfurter:

By his — by his — by your statement, his valid authority, you mean that — you mean to cast to one side the legal position of the United States and merely restrict his doings to that which is within the assumed scope of his responsibility without questioning the authority of his superiors, is that right?

Daniel M. Friedman:

I’m not — I’m sorry, I’m not clear to your question, Mr. Justice.

Felix Frankfurter:

Are you — when you say his valid authority, if — if the United States is a tortfeasor then he is — by tort also a tortfeasor and proceedings could be held against him, couldn’t he?

Daniel M. Friedman:

Yes.

Felix Frankfurter:

Without joining the United States.

I don’t mean its property and therefore by valid authority, you mean nearly as a matter of — the laws of agencies, was he moving within inside the circle of his own responsibility in relation to his — his superior whatever the authority of the superior is?

Daniel M. Friedman:

That’s right.

I used it as a shorthand phrase or the —

Felix Frankfurter:

He is doing what he is by virtue of his office supposed to be doing.

Daniel M. Friedman:

That is correct.

William O. Douglas:

That was held in the Lee case to be a jury question.

Daniel M. Friedman:

Well, Mr. Justice, we think that in the Lee case — that the Lee case was limited by this Court in the Larson case.

Now, I’d like to come to that.

The — this Court in the Larson case, considered the impact of the Lee case and this Court in its decision in the Larson case specifically distinguished the Lee case on the ground that the Lee case was one of those instances in which the suit might be maintained because the government officers did not have — are not acting within a constitutional authority.

William O. Douglas:

And the other reason was the reason given by the Department of Justice below and the District Court, I think, that United States wouldn’t be bound in any event.

Daniel M. Friedman:

Well that — that was — I think that was one of the grounds that the United States would not be bound, but in this case, to permit this action to go forward would necessarily have a serious impact upon the government property.

I think it’s –it’s recognized that the — if this case would have go forward and if the respondents would have prevailed and to get an order of ejectment against the petitioner, this would not bind the United States because it was not a party.

But, and I think, this is terribly significant, it seems clear to us that what the respondents are seeking is not just to eject the petitioner from this property.

Daniel M. Friedman:

In other words, their objection isn’t that Mr. Malone is on the property and they wouldn’t be satisfied if Mr. Malone was ejected and another forest that Mr. Bowdoin will put on the property.

What they’re really seeking to do is to have ascertained the question of who owns this property.

This is the purpose of their suit.

Now, I like to refer again to the Lee case —

Felix Frankfurter:

That — that was — was that the issue on Lee or the — or title in issue in Lee?

Daniel M. Friedman:

Oh, yes, Mr. Justice.

Felix Frankfurter:

I thought it was a possessory action.

Daniel M. Friedman:

Well, it’s a possessory action.

Basically, it’s a possessory action, but where title is claimed by the person in possession, necessarily, the only way that the plaintiff in the suit can establish his possession is to show that his title is superior to that of the one in possession.

Felix Frankfurter:

So that so far as legal issues are concerned, you say Lee was an adjudication of title between the parties to the litigation thought it might not be binding on the United States, same as in this Court, is that right?

Daniel M. Friedman:

Well, that was the — the effect in Lee, but we think that the Lee case in light of Larson did no longer —

Felix Frankfurter:

But I’m not — I’m talking about Lee, just to get the —

Daniel M. Friedman:

Yes, as between Lee, the Court explicitly stated in Lee, that it would be — adjudication would not bind the United States.

Felix Frankfurter:

I haven’t read —

Daniel M. Friedman:

But —

Felix Frankfurter:

I haven’t read Larson but wasn’t Lee distinguished on something connected with the Court of Claims?

Daniel M. Friedman:

Well, I — I was going to add that the Court pointed out in the Larson case that at the time of the Lee decision in 1882, at that time, there was no remedy available to the plaintiffs in the Lee case by which they could obtain compensation for the taking of this property and that — subsequently there are two, five years later the Tucker Act was passed which did authorize such a suit and then the Court went on in the Larson case to point out that the —

Felix Frankfurter:

Nothing like that was suggested of course in Lee, was it?

Was that explanation given in Lee?

Daniel M. Friedman:

No, no, that explanation was not in terms given (Voice Overlap)–

Felix Frankfurter:

Nobody thought about that in Larson.

Daniel M. Friedman:

Well, that maybe Mr. Justice, but that at least —

Felix Frankfurter:

I’m not — I’m asking, I’m not stating.

Daniel M. Friedman:

No, Lee did not speak in those terms but Lee did speak — Lee did speak in terms quite explicitly about the Government having seized the property, the Government holding it and there being no way in which the plaintiffs in the Lee case could obtain just the compensation.

But in the Larson case, the Court pointed that out and then the Court went on after distinguishing Lee to further point out that the existence of a right of action for a compensation is significant on the question of sovereign immunity because if in fact there is some other way by which the party can get adequate compensation for the alleged unlawful holding or taking, the constitutional claim, the claim that there has been an unjust taking without constitutional recompense force, and therefore in that situation, the case would not come within the standards which the Court had enunciated permitting these suits.

Felix Frankfurter:

Of course that explanation isn’t — isn’t one of the rule because the — the whole point about sovereign immunity is that the sovereign is immune where another — whereas a non-sovereign wouldn’t be and so the sovereign can do a lot of wrongs, but you can’t go to a court.

Daniel M. Friedman:

Well, but if the sovereign — if the wrong action of the sovereign through its officer is an unconstitutional action, it is no longer considered the action of the sovereign and when the so — the officer was acting unconstitutionally is not in effect carrying out properly the sovereign’s business and therefore it is not in effect a suit against the sovereign.

Felix Frankfurter:

Even though he may merely be a bad constitutional lawyer in carrying what he’s told to do.

Daniel M. Friedman:

That’s right.

Because the purpose, the basic — I think the basic purpose of the theory of sovereign immunity as it’s developed now, I think it’s long past the theory of the old English theory that the king can do no wrong, that he can’t — the king can’t be sued and can’t sue himself, the theory of it basically, I think now, is the recognition that permitting suits against the sovereign has a very serious and adverse impact upon the operations of the Government.

Daniel M. Friedman:

This is a — this tradition of sovereign immunity goes way back and the Court has refused to extend it except in situations where Congress itself has waived sovereign immunity.

Now —

Felix Frankfurter:

You don’t have to have any reasons, the Constitution precludes this.

Daniel M. Friedman:

Well, I was — I was going to —

Felix Frankfurter:

But for this — as to states, you don’t have to have any reason.

If you can’t sue a state because the Constitution forbids, you don’t have to have either a good reason or a bad reason or a midland reason?

Daniel M. Friedman:

No, I — that’s correct.

I was just indicating why we think this — the doctrine should not be extended as we think the respondents were attempting to do it in this case that why we think the interpretation given in the Larson case is a sound one because of the basic policy that is inherent in the doctrine of sovereign immunity.

William O. Douglas:

If that would be true — what the Larson case says about Lee would be true of any ejectment action, wouldn’t it, because if the Government is right, the — the Government has the property without paying compensation if the claimant — private claimant is right and the Government — if it wants possession, must pay just compensation.

Daniel M. Friedman:

That is correct.

We — we’re not suggesting, Mr. Justice, we recognize that if in fact, there has been an improper taking of the property by the Government, the Government in an appropriate suit would be liable for just compensation.

I — I want to state in all candor that we have very grave doubts whether at this time any such mere action could then maintain by these respondents because of the long time that has elapsed but in dealing with this problem, it seems to me, you look to the basic rights of people in this situation.

And I — I would say Mr. Justice Douglas that as a practical matter today, as long as we do not have — as long as we do have these rights to sue for just compensation in case of a taking most of the rights to sue under the Tort Claims Act that the Lee case does not permit the maintenance of an ejectment action in these circumstances.

John M. Harlan II:

How long your time has elapsed?

Daniel M. Friedman:

Well, the Government acquired the property by deed in 1936 which is — was 23 years before this action was brought.

The claim of title upon which the respondents rely, which I say it goes way back more than a century, the last one in the chain of title, the predecessors of the present respondents, I believe, died in 1928 and so that at least presumably as of that time, these people came into whatever property interest they had.

Now, I would like also to refer briefly a little bit to the character of this action in the ejectment in the Georgia courts because the Court of Appeals stated that the only issue involved in the Georgia ejectment action is possession not title.

And therefore, they had suggested that the Lee case really was a different animal because there, in the Lee case, there was a question as to title.

Now, the Georgia courts have stated that possession is the object of an ejectment action, but it’s in the object of an ejectment action only in the sense that the plaintiff was out of possession, wants to get possession for the property.

And he wants to get possession of the property because he claims he has a better title than the respondent who is in possession.

And in this case, the only way that the respondents could possibly get possession of this property as against the petitioner, Mr. Malone, is to show that the title under which Mr. Malone holds it that is his authority is in fact not a valid title and thus, the only way that they can prevail in this action, we think, is by challenging the title of the United States.

And indeed, the Court of Appeals, although it repeatedly stated that possession is the only issue involved in a Georgia ejectment suit, nevertheless, acknowledged at page 23 of its opinion, I’m sorry, page 25 of the opinion, that under the Georgia proceedings, the respondents will be able to show that the United States did not own any title to the lands which would defeat appellants’ claim.

So necessarily, in disposing of this ejectment action on the merits, the lower courts would have to reach the question of the title of the United States to these lands.

And the title of the United States to these lands, it seems to me, the question relating to that, is necessarily a suit against the sovereign and since the theory upon which the respondents are challenging this title is inherently an attack upon the title, the suit against the petitioner, the suit against the petitioner who admittedly holds this land under his lawful authority necessarily is a suit against the United States.

It’s a suit against the United States because its effect, if allowed to go to judgment, would be to interfere with the property of the sovereign.

It will require a determination of the title of the sovereign.

It would, in all of its essential elements in effect, be seeking to eject the United States from this land and we think that this case is squarely controlled by the Larson case and that the Lee case in this field, at least in this kind of a case, is no longer applicable.

And we therefore believe that this suit was a suit against the United States to which the United States had not consented, and therefore, that the District Court properly dismissed this action.

John M. Harlan II:

Do you see any solid basis for distinguishing Larson, any solid basis?

Daniel M. Friedman:

I do — I don’t think so, Mr. Justice.

Daniel M. Friedman:

I think that Larson specifically considered this point whether an action see — in effect seeking recover property under a claim of title might be maintained solely on the theory that the officer was tortuously holding it and flatly rejected it.

I think that the Larson case specifically said that unless there is a showing either that the officer is acting beyond his statutory authority or that the officer is acting unconstitutionally that you cannot, in any other situation, charge an officer holding property of the Government in that situation.

That is —

William O. Douglas:

You’re assuming large sections of the — Chief Justice Vinson’s opinion in Larson in which five members of the Court — in which five members of the Court joined.

Daniel M. Friedman:

Well —

Felix Frankfurter:

Well, it could have been an opinion of the court.

Daniel M. Friedman:

I — I don’t think so Mr. Justice.

I hadn’t intended to do it —

William O. Douglas:

Well, I think there were only four that joined they make — made it five.

Daniel M. Friedman:

You — you joined in the opinion of the court.

William O. Douglas:

I think there were five — five for the — for an opinion including —

Daniel M. Friedman:

Including —-

William O. Douglas:

the writer of the opinion.

Daniel M. Friedman:

Pardon, including yourself.

William O. Douglas:

I think there were five including the writer of the opinion.

Daniel M. Friedman:

That’s correct.

Well, we — we think, I don’t — I have not intended to leave out large portions of the opinion because we think that the — the basic rationale of the Larson case faced this very problem admittedly in a different factual contest, but the basic rationale of the Larson opinion, we think, is that you cannot bring the suit against a government officer in his official capacity merely on the claim —

William O. Douglas:

But you are not without support because there were three members of the court who — who — had that — that view where they dissented.

Daniel M. Friedman:

That’s correct.

William O. Douglas:

(Inaudible)Justice Frankfurter.

Felix Frankfurter:

I — I start with the Larson case, but before I get to the Larson case.

I want to ask you this, forget the Larson case for a moment, suppose you had only Lee to deal with, what distinction would you make in this case — I want to ask you two or three questions but I’ll do it in sequence, suppose you had only the Lee case, what would you do with this case?

William O. Douglas:

You’d ask that Lee be overruled, wouldn’t you?

Daniel M. Friedman:

Well, I think we — we suggest that Lee be distinguished on the ground that —

Felix Frankfurter:

What would you do with Lee?

Would you — would you distinguish it or would you say that you ask to have it reconsidered and overruled, which?

Daniel M. Friedman:

I — I’m not — I suggest — I think we would probably ask in both steps, but first, I ask for it to be distinguished —

William O. Douglas:

That too is a part of your opinion.

Daniel M. Friedman:

That’s correct.

William O. Douglas:

Or position.

Daniel M. Friedman:

Yes.

I meant —

Felix Frankfurter:

I’m in an unhappy position in taking an opinion by five members of the court as the opinion of the court.

Daniel M. Friedman:

Correctly.

Felix Frankfurter:

Start from there.

Daniel M. Friedman:

Yes.

Felix Frankfurter:

Now, what would you do with Lee?

Would you ask this Court to overrule it, if not, what distinction do you offer —

Daniel M. Friedman:

Well, the distinct —

Felix Frankfurter:

— between this case and Lee?

Daniel M. Friedman:

The distinction I offer between this case and Lee is perhaps two-fold.

First is the distinction that in the Lee case, the Court found that there’d been an unconstitutional taking.

The property was being held and there was no way in which recompense —

Felix Frankfurter:

Well, let — first define what they put so fine that there is a preliminary question.

William O. Douglas:

That is a jury question on?

Daniel M. Friedman:

That was a jury question.

And secondly, the fact that in the Lee case, factually, there are distinctions that in the Lee case, the Government had in effect seized the property that it was before that time it was clearly in the possession of the plaintiff’s ancestors in the Lee case.

Felix Frankfurter:

But all your argument as to sovereign immunities makes no difference?

William O. Douglas:

But it’s difficult to say that in one case, the tortfeasors and the other case, the officers act unconstitutionally, I don’t know what that difference is.

Felix Frankfurter:

I don’t either.

Daniel M. Friedman:

Well, I — I think the — I think the distinction is this —

William O. Douglas:

Well, the dissent — dissenting opinion in Larson emphasized it, isn’t it?

Daniel M. Friedman:

I — I think I suggest this as the distinction that where the officer acts in a way that it is within his authority, purported authority but in fact, that authority has not been validly conferred in con — in the constitutional stand, that is the statute under which he acts as unconstitutional or the particular conduct which he engages deprives the plaintiff of his property without due process of law then in that situation, the action of the officer fairly viewed is not the action of the sovereign because he is going beyond his valid authority.

Felix Frankfurter:

But you can’t tell that until all — until you go through a lot of reasoning or jury trial and so forth.

Daniel M. Friedman:

Well, then — ma —

Felix Frankfurter:

My — my question to you is, it does not — is not generated by any — any interest in the dissent in Larson.

My interest is a very different thing.

My interest is intellectual honesty in decisions.

What I want to know is shouldn’t we burry, if you’re right, Lee and not keep it alive by casuistic and from my point of view, wholly untenable distinctions.

Daniel M. Friedman:

Well —

Felix Frankfurter:

Which leading of all sorts.

Daniel M. Friedman:

I — I think that as a practical matter, the Lee case has been buried in Larson.

And I think —

Felix Frankfurter:

Well, shouldn’t it be false?

Shouldn’t there be a burial service of it?

[Laughter]

Daniel M. Friedman:

I — I — I hope that this maybe the occasion for that.

I’d like to answer one, if I may —

Hugo L. Black:

That’s not always done is it when one —

Daniel M. Friedman:

Pardon?

Hugo L. Black:

That’s not always done when one ceases to exist, an opinion or judgment.

Daniel M. Friedman:

If I may Mr. Chief Justice, I just like to answer one thing more that Mr. Justice Douglas asked me with respect to the jury trial which is, there may of course be preliminary questions before determining whether the sovereign immunity applies that is whether in fact the officer is acting within his authority or the constitutional questions, but those questions are preliminary questions.

In the Lee case, it happens that these preliminary questions were determined in effect that the — in the Lee case, the case went to trial before the jury and we recognized and I think this Court has recognized that there are many situations in which it is necessary to make this preliminary inquiry before reaching the constitutional (Inaudible).

Felix Frankfurter:

Do you — do you think really a question should be put to the jury whether an officer of the United States is acting unconstitutionally?

Daniel M. Friedman:

No, no.

Felix Frankfurter:

I think that’s really a jury question?

Daniel M. Friedman:

No, no, Mr. — No, Mr. —

Felix Frankfurter:

Considering that we split our heads here into deciding that thing and that’s because you must have a jury to pass on.

Daniel M. Friedman:

No, Mr. Justice.

I’m just suggesting that there are preliminary questions which may exist in this field, but we don’t think any of them exist here in view of the admitted allegations before the District Court.

Felix Frankfurter:

All of which are fictions.

Earl Warren:

Mr. Friedman, you may have five minutes to conclude your argument if you want to.

Daniel M. Friedman:

Thank you.

I — I would prefer if I may reserve the time.

Earl Warren:

Yes, yes, you may reserve.

Daniel M. Friedman:

I think I’ve completed my direct presentation.

Earl Warren:

Yes, I have that in mind now.

Daniel M. Friedman:

Thank you.

Earl Warren:

Mr. Mitchell and you may have — you may have an additional five minutes, too, if you — if you should desire.

William Buford Mitchell:

Thank you, Mr. Chief Justice, may it please the Court.

William Buford Mitchell:

As the Circuit Court of Appeals of the Fifth Circuit says, this case is identical with Lee versus Uni — United States versus Lee.

The Government’s attorney has skipped over altogether Land, Chairman of the Maritime Commission versus Dollar, Stanley Dollar, Dollar Steamship Lines and those other parties to that case in which you held that a suit for the recovery of prop — for possession of property could be maintained against government agents.

In Land versus Dollar, Mr. Land and the other members of the Maritime Commission got a hold to the stock of the Dollar family and the Dollar Steamship Lines and wouldn’t return it back to them.

They contented that the stock was only pledged to the Maritime Commission for a loan and the loan had been paid and when the loan was paid, they demanded their stock and the Government then came in with the same contention here, you are asking for a judgment that will expend itself on the United States Treasury and even if you pledged it and have paid it, you cannot maintain this suit.

Now here, we have a suit that is a common practice in Georgia and the only thing that — this is what we call the John Doe-Richard Roe form of ejectment instead of bringing a ten or 15-page suit in equity and the easiest way you get thrown out of court in Georgia is bring an equitable action for the possession of land.

I’ve tried it myself.

In fact, the Government has cited one case here, Nottingham versus Elliott, in which I was a writer of the brief in the Supreme Court.

They dismissed me on demurrer in the lower court and affirmed it on the appellate court.

You can’t get ex — equitable relief in Georgia if you have a plain legal remedy and a — as our writers have said in Georgia, the ingenuity of land has never found a method to test the possession of land that our John Doe-Richard Roe form of ejectment.

You come in to court and you put it down squarely to a man.

You say, “You are on my land.

Get off!”

And it’s just a few lines on the John Doe-Richard Roe form of ejectment.

Then, the man that you say transcends possession says, “He can go so far as to say I…”, but of course they generally say, “I am not guilty of the acts complained of”, and that’s all the answer you need.

The law says, you admit that he is in possession and he has got — that you — you say that the other man in his possession and the defendant has got to come in and say, “Yeah, I’m in possession and I’ve — I’ve ousted you.

And I’m entitled to stay in possession”.

Under that writ or under that action, you only get a writ of possession for the land.

Then we have what we call, “man’s profits” that if he has farmed it then owe some rent, you will make a further allegation as to man’s profits.

In this case, if the Government had gone in there and cut out timber, this tract of timber as this land is heavily timbered.

It has started off back during the depression days as what we call “a shutdown in Georgia”, rehab farmers.

I think it was Rehabilitation Resettlement Corporation, if I remember correctly the name, but the Government vowed up a lot of land and put farmers in that site to help the economies on in Middle Georgia.

Now, in 19 — in 1857, Mr. Tolan, the ancestors of these people made a will, the same type of will that Mr. Custis made to General Lee’s daughter.

He left it to her — her lifetime and then as her death to her son — to her children, George W C — Custis Lee brought this action against the Admiral or the General Land in Georgia.

In 1857, Mr. Tolan made a will deeding his pro — willing his property to his children and he left it to the ancestors, the mother of two of Lees and the grandchildren of other say “She shall have it her lifetime and at her death that it should go to her children”.

Now, this is getting into facts and the Government’s argument has been in it.

We can show the facts to be identical with the Lee case.

It hits in all force but —

William O. Douglas:

Except that Richard Roe wasn’t in that case.

William Buford Mitchell:

Now, it says it — I wouldn’t — I haven’t read the record in that case, but if I believe if you will check the original record, you possibly will find it was John Doe-Richard Roe because in the opinion it says in the fictitious form as used by the statute of Virginia and our case that is what we call it fictitious but reading the Lee case, you will find it says that it was brought in the fictitious form as provided.

Now, I haven’t read the original record.

William Buford Mitchell:

It was up either in Virginia or here and I have no facilities in Middle Georgia to look it up.

Hugo L. Black:

Do you think there has been irrelevance with your legal question?

William Buford Mitchell:

Sir?

Well —

Hugo L. Black:

Do you think (Voice Overlap)–

William Buford Mitchell:

No, sir.

But we say that as — as Judge Cameron of the Fifth Circuit Court of Appeals says a careful examination of Lee shows that it has been cited 300 and something times and by the Supreme Court, 58 times on the distinguished form.

You cited it in the case of Land versus Dollar when you’ve held that a type action for the possession of property could be maintained against the officer in Georgia.

Now, they talked about acting outside of his authority.

We say in this case when we bring this action to dispossess the government agents in charge, he has walked on our land there whether he had — it has been done by his superiors ordering or in the Lee case, by order of the President and that as the Lee case went more in which the Government went in there and just took without any reasonable rhyme as counsel — opposing counsel says in the Lee case the Government levied on it, put taxes, I don’t know what kind of taxes they could have assessed at that time because we have no — have no ad valorem tax now but possibly that did have at that time, but the Government sold it and the basis that Mr. George Washington thought Custis Lee recovered it was that — the general holding it or the tax collectors holding it, refused to permit a friend of Mrs. Lee to pay the taxes and held that they had to come up there and personally pay it, of course it was highly in front of all of it, Mrs. Lee would come up personally and pay the taxes at that particular time.

And they went to trial on — it went to trial in Virginia before jury and that the Virginia jury and the courts held that they acquired no title by that illegal land.

And the General —

Hugo L. Black:

Do you think you’d be in a different situation if Congress had passed the law saying that it wanted this particular land for governmental use and this man had been on it representing them at the time you filed your suit, so far it had been there?

William Buford Mitchell:

As I understand, this is not one of the things which the Constitution gives the Government the right to condemn for.

They got by far this land on it.

It is now what we called the Piedmont Reserve.

Locally, they haven’t — they signed there, showing the ducks flying by and we have a game preserved on their own part.

The Government owns a considerable lake ridge in that territory but I — for park purposes but back, when they acquired this land by purchase for the Rehabilitation and Settlement Corporation, I don’t believe it was in the constitutional authority to condemn it and in getting down to the facts on why it is our land, my clients, mother and grandmother acquired a life estate in it.

She sold that life estate to a man named Roberts in 1873, Roberts in 1900, sold it to Browns.

Browns — and the she went and sold 109 acres.

Well our statute law in Georgia says if you haven’t applied for estate even if you make a straight how to warrant a deed, you only convey whatever life — the life estate you had.

No question about that.

And then when Roberts sold some 500 acres.

I say that the deed is broad enough to include this.

Then in 1936, Brown sold it to the Government, but our contention is if it — if we can sue and the only thing involved here, simplify, I believe, and it just appeared in court in April of 1959 and we have been arguing almost three years on the jurisdiction facts that are involved here.

We can show that the ancestor of our clients died in 1928.

Now in 1928, under the Georgia law —

Earl Warren:

I think — I think before we get to that, we’ll recess.

William Buford Mitchell:

Alright.

Earl Warren:

— continue to your argument.

William Buford Mitchell:

Thank you, sir.

As I was getting into — the Government has gotten away from Land versus Dollar all the way is that would apply in this case, you will find on 733 of U.S. versus Dollar, where the right to possession or enjoinment of property under the general law is an issue and the defendants claim as officers or agents of the sovereign, the rule of U.S. versus Lee, the citation has been repeatedly approved.

Then on 738 they had no — this Court held was false.

And where they unlawfully seized or hold a citizen’s realty or chattels recovered by appropriate action at law or in equity, he is not relegated to the Court of Claims to recover a money judgment.

The dominant interest of the sovereign is then on the side of the victim who may bring his possessory action to reclaim that which is wrongfully withheld.

William O. Douglas:

Did it surprise you that that was a unanimous opinion?

William Buford Mitchell:

Sir?

William O. Douglas:

Did it surprise you that that was a unanimous opinion?

William Buford Mitchell:

Well, I thought it would might be a good law and I thought that it should have been what —

Felix Frankfurter:

That’s before we really understood what United States against Lee decided.

William Buford Mitchell:

Sir?

Felix Frankfurter:

That was before we really understood what United States against Lee really decided.

That didn’t come until certain volumes later.

William Buford Mitchell:

That — you’re referring to Larson?

Felix Frankfurter:

Something like that.

Hugo L. Black:

Do you think your case would be any difference if you have served the post office down in Georgia?

William Buford Mitchell:

I don’t think it would be any difference if the janitor — if I had a home next to the post office in Georgia and while, for instance, while I’m up here, the janitor went in there and took charge of it.

And when I got back to Georgia, the janitor says, “Well, you can’t dispossess me from this.

I’m a government employee and I’m holding this for the convenience of the Government so I can get up early and go around and clean up the post office the next morning”.

Hugo L. Black:

Suppose post office — was the post office you asserted.

I’m asking you that because of the sentence you said a while ago, would you see any difference between the suit to — a against the post master to get to asking from possession to the Government on the post office?

William Buford Mitchell:

If a government — if a —

Hugo L. Black:

I’m not saying you couldn’t.

All I’m asking you is if you see any difference in the pleading.

William Buford Mitchell:

I say that law would be analogous say for some children inherited some land and they were just minor small children and the Government went in there and built a post office on their land and then when they became of age, I would say that they could dispossesses the postmaster or somebody.

I don’t know where they bring it against the postmaster or whoever is the postmaster in charge, I say the same law would –.

Hugo L. Black:

Would you think they could sue the Government for just compensation in taking the property?

William Buford Mitchell:

Well, I’m afraid we get into what they want us to think about.

As I understand, they should have condemned that property if they have the right to condemn it, if they take it or — and I don’t much about the Court of Claims or these, but it would make such as a harsh rule for us when they say they came in possession of it and the Government passes a six year statute on claims rehear.

There’s no statute of limitations in Georgia as to the recovery of land.

William Buford Mitchell:

You prescribe against it and we have descriptive that bores you sometimes, but we say here, when this lady died, this daughter of the testator, that — title to that land immediately descended into the — our heirs, title — and we were entitled to position and anybody came in to possession and after then came in as trespassers.

Hugo L. Black:

What was the statute of limitations then?

William Buford Mitchell:

You don’t have statute of limitations to land in Georgia.

Hugo L. Black:

In Georgia?

William Buford Mitchell:

You prescribe against it.

Hugo L. Black:

You prescribe?

William Buford Mitchell:

Yes, there’s no statute.

Hugo L. Black:

What is it, 20 years?

William Buford Mitchell:

There are two of them.

There’s one on the bill of title that — the seven years without cover — color of title is 20.

But there has been no prescription in this title you have in this land.

You have to show possession that is — is so note — well first you’ve got to go from the end on the claim of right.

Hugo L. Black:

Well, I shouldn’t have asked you that.

I thought the — I — I agree that it is not decisive to your issue.

I was a simply curious.

William Buford Mitchell:

Well, I will be glad to go with — I haven’t gotten so much more to say.

It’s a very short case.

My brief is very short and I — I’m not generally long winded and I may need this extra time to take compliment there to minutes.

Hugo L. Black:

It’s not compulsory.

William Buford Mitchell:

Sir?

Hugo L. Black:

The time is not compulsory.

You don’t have to push it.

William Buford Mitchell:

Yes, sir.

But — in — to prescribe against land, you have to show certain means of possession like wiring in, if possession — first, you’ve got to go on the claim of right.

And then your possession has to be so notorious as to put the world unnoticed that you are claiming it.

This land is out there on the edge of what we call the Piedmont Reserve.

I think they have it something else, but on the edge of that, it’s just growing — it’s been growing timely since 1928 or far behind that.

And there’s no possession that could even come under where they could prescribe to get good title.

Now, if we go in to — we don’t know as a matter of fact that we can allege in the Court of Claims, we don’t know.

When the Government took charge of it or whether they are even claiming or not, it — when — because in 1936 deed, they got original deed called for 1800 and something acres and then they laid a team animal to plot claimants of something in excess of 2000 well if it gets down there, we finally have juris — if you decide we have jurisdiction in this case.

William Buford Mitchell:

It may be that superiors of the petitioner here will say, “We don’t have that.

I’m general counsel for ti — I’m general counsel for tip colleague down and emphasize a little small girl’s colleague and few years ago, in the same territory, it was determine, the colleagues spoke and sold all the land to these people here in the adjoining county of Jones and then when the men start to survey it and they said, “Well, we don’t know that you own 300 and something acres here and we saw [Inaudible] in $80,000 on the 300 and something acres of land and there are number of teacher’s residences there.

And it may be that if we can get in to court here, they will determine that they don’t own this after they’ve taken.

Now another thing, the government attorney said, “Count me in two, they brought in the end later and after careful and diligent researching their files has found a lot here where I will state now our contention.

That was at the time I sent the United States’ Attorney and the Attorney General’s registered copies of this ejectment suit in Jasper County.

I think we’ve mentioned that the case was original.

It was brought in the State Court of Georgia and removed federal.

I believe counsel mentioned that.

Well, they say that’s where they get — I did it after checking in to some law about the statute of limitations, they say that we can’t bring it because of our last days but it has been the last days, our land has been there, we’ve been holding on to a title that is superior to the Government’s title.

And of course, the only thing involved here is — the only thing the court could give us would be a writ of possession.

Now, you can defend all these cases by showing a superior title or you can recover possession just on your prior possession alone against a trespasser or against the word except you’re owning or you can defend an action of ejectment by showing a paramount title in a third person not even in possession, not even in the involved in the suit that this defendant can successfully interfere against the plaintiff by showing a paramount title in a third party.

Earl Warren:

Well, who you — just who you are trying to dispossess, Mr. Mitchell, this — this respondent or — or I mean this petitioner or the United States Government?

William Buford Mitchell:

We are trying to get rid — writ of this possession against the petitioner, Mr. Malone.

Earl Warren:

Yes, Now —

William Buford Mitchell:

If we get that, we’re going to start to cut some timber on there and you going to hear this voice solely and they’re going to do like they did in the Lee case, they’re going to come in, and you know the Lee case is a [Inaudible] case.

It was originally General Lee against of Georgia department so far as Custlis Lee against the general — I believe that General Koffman, I maybe mistaken about something else but I think it’s General Koffman.

The Attorney General just lay the suggestion down there in the state court and then when he recovered it, that’s where the case got in there U.S. versus Lee.

We have held this U.S. versus Bowdoin, I know you may pronounce it different ways enjoined we —

Earl Warren:

They then — then they’ll be chasing you instead you chasing them.

William Buford Mitchell:

That’s exactly right, sir.

Earl Warren:

But let — let me ask — let me ask you this question this, Mr. Mitchell

William Buford Mitchell:

Yes, yes.

Earl Warren:

I don’t — I don’t ask your position.

I —

William Buford Mitchell:

I understand.

Earl Warren:

— nor did I ask the other question because I want to know this.

Suppose that this petitioner did walk off your land and — and announced to you that he — he no longer had any possession, the United States Government put another person in possession of it, would your case be mooted?

William Buford Mitchell:

I don’t think so.

I believe you could like — I don’t know whether the Larson case was originally, if I’m correct, the Larson case was brought against another man and then Jeff Larson succeeded him, I didn’t know whether it’s Amber Emory Land or —

Earl Warren:

Yes.

William Buford Mitchell:

Larson I believe I just make a different part in there and — and go that way or — in an ejectment suit, it don’t make any difference.

If all of you gentleman come down and claim and all we got to do is serve you with copy of the process and you will be bound by it.

That our — that’s we took bring.

Hugo L. Black:

We have cited to keep a writ on that [Inaudible]

William Buford Mitchell:

Well, we would not to that.

But I’ll just use — I — I’m not trying to be factious either but you serve anybody that you find that he is claiming and not just your — it’s a matter of excellent way to try the possession of land.

Potter Stewart:

But you’re point of having Richard Roe, the — the nominal person you’re trying to [Inaudible] this, is that it?

William Buford Mitchell:

Well, that was done back in 1700 —

Earl Warren:

We’re addressing —

William Buford Mitchell:

— and I don’t know how to bring it in other way — we have what we call as Jack Jones form that I don’t know.

Sir?

[Inaudible]

William Buford Mitchell:

Jack Jones.

Potter Stewart:

That’s the —

William Buford Mitchell:

Mr. Jack Jones.

That way — you don’t have to text your title to John Doe-Richard Roe that he bring of —

Earl Warren:

[Inaudible] Jack Jones?

William Buford Mitchell:

Jack Jones, what we call a Jack Jones, you have to attach an abstract to the title.

But here, you don’t have to do anything.

Hugo L. Black:

You have to take into consideration the ruling in Dollar case?

William Buford Mitchell:

Sir?

Hugo L. Black:

You have to take into consideration the ruling in Dollar case?

William Buford Mitchell:

Well, that wouldn’t be applicable here because that would go away all back.

I had studied that a little in law school but I never did — I don’t think it has much of [Inaudible]

Earl Warren:

But Mr. Mitchell, I — I was wondering if in seven — if this was back to the 1700s, in the 1700s in action such as you have brought here, would the sovereign have been considered as a Richard Roe?

William Buford Mitchell:

Well, as I understand back before 1776 you — the sovereign could do no wrong.

Earl Warren:

Yes, but when did it cha —

William Buford Mitchell:

And you couldn’t bring one sir?

Earl Warren:

When — when did it change so that Richard Roe would be considered whether Government would be considered Richard Roe?

William Buford Mitchell:

There’s never been a case so far as I’m able to find in Georgia where this has been a suit against any government agencies.

William Buford Mitchell:

I think this case on a — well I first found one in a District Court out in California, Oscar House.

And I think I have recited in my brief against admiral so and so and that deal that and I started to write it down and got in to Lee and then get into Land.

I thought I had two mighty good cases there and in [Inaudible] in brief thought that of like Mr. Friedman here that a — those are two landmark cases and if they are still the law of the land that we are entitled to bring this action and it’s going to take a lot of overruling and overrule both of them.

Felix Frankfurter:

Mr. Mitchell?

William Buford Mitchell:

Yes, Sir?

Felix Frankfurter:

Will you let me suggest that you could use some of superfluous time you have on your hand by telling us what you do with the Larson case?

William Buford Mitchell:

Larson case is an action for personal property and for damages.

Land is for property.

Lee is for specific property as both of those cases hold.

Larson is one in which the Coal Commission or whatever they call it at that time, sold the property as the defendant in here say as to him and then because he didn’t comply with certain regulations by depositing money, they said they wouldn’t go and sell it to him and then he brought a mandatory action against Larson for property that belonged to the Government.

There was never — any question and that the Government had good title to that property in Land and in Dollar and Lee, there’s question about the Government.

They — both of those cases hold that the Government didn’t have title because Lee — was because of the void tax sale, Land because of the stock of the Dollar Steamship Lines was pledged.

And in Larson, it was admitted by all concerned that the titles to that coal belonged to the Government and that would have been a mandatory and to think would have been a mandatory injunction to require Mr. Larson to convey that coal to the defendant and to the respondent.

Felix Frankfurter:

Does that mean that in this case if it should turn out that this land belonged to the Government but then retroactively, the suit should had been dismissed for want of jurisdiction?

Must you first — in other words in this kind of a litigation, must you first determine the merits before you decide what the — whom you can sue?

William Buford Mitchell:

Well that’s if the Government owns the land and all of the — all of these —

Felix Frankfurter:

Suppose it’s in contest.

William Buford Mitchell:

Well, if — if —

Felix Frankfurter:

(Voice Overlap)

William Buford Mitchell:

— I would say it will be in contest but it — there’s no way to determine who has the right of possession until it is tried.

If we — if I will —

Felix Frankfurter:

(Voice Overlap) Lee was in contest, wasn’t it?

William Buford Mitchell:

Sir?

Felix Frankfurter:

In Lee, there is a controversy who owns what?

William Buford Mitchell:

Well it’s the same thing that —

Felix Frankfurter:

Something that Lee family said they had a good chain of title, they established a good chain of title but the Government said no.

William Buford Mitchell:

That’s right.

Felix Frankfurter:

The title is broken.

William Buford Mitchell:

The Government says they got good title about tax sale —

Felix Frankfurter:

Yes.

William Buford Mitchell:

— and the Court said that it was a void tax sale and the lease title would do that here.

We don’t even have the Government.

We say the Government has no title to it because we own it and they —

Felix Frankfurter:

You are —

William Buford Mitchell:

Yes.

Felix Frankfurter:

— onto Lee and — and want us to shut our eyes to Larson.

William Buford Mitchell:

No Sir, I want you to follow Land, too.

Felix Frankfurter:

Land —

William Buford Mitchell:

Land —

Felix Frankfurter:

— also preceded Larson and there is good deal explaining of what Land — Land and Larson.

William Buford Mitchell:

As I understand the explanation between them is Larson would have been in effect a mandatory injunction requiring the commissioner to convey coal to the defendants’ in there.

William O. Douglas:

I get it.

What you’re coming down to really is the vote of the confidence and our ability to come at this position your way and reconcile all our previous decisions.[Laughter]

William Buford Mitchell:

Well —

Hugo L. Black:

You don’t reject that, do you?

William Buford Mitchell:

Sir?

Hugo L. Black:

You don’t reject that, do you?[Laughter]

William Buford Mitchell:

No, sir.

I think if that — might have to reconcile some of them but I can see no, personally, I can see no conflict in deciding this case as a — as a Fifth Court — Fifth Circuit of Court of Appeals decided.

And — and as you have said in Larson, I believe you said that it hasn’t been overruled or you distinguished Larson from Land.

And —

Felix Frankfurter:

Was no rule if it’s chloroform?[Laughter]

William Buford Mitchell:

Well, it might have been as the District Judge or some district judge up in Eastern District of North Carolina or South — North Carolina I believe said it was severely limited but when in this case, it wouldn’t be — have to be limited as it what I have to be almost all rules does not, I believe when the justices had said you may — could bear one without absolutely overruling.

But then, in the appendix of the argument of the Government in their brief they go in to the law of Congress requiring the — the Attorney General’s Office to certify that they have good title before they can buy land for over $25,000 but if they overlooked something, I know now that in Monroe County they are trying to acquire some property and they have lawyers co check the titles.

They’re using some of the layman employees over there in this reserve.

He wouldn’t be able to give a good opinion, he might write some maps and send it up here and the Attorney General’s Office approve it but that wouldn’t show that he got perfect title to it and I submit that if Lee and Dollar have anything, anything today then the judgment of the Fifth Circuit Court of Appeals should be affirmed.

Earl Warren:

Mr. Friedman.

Daniel M. Friedman:

Mr. Chief Justice, may it pleas the Court.

I just like to say one thing that Land against Dollar to which I had not previously referred is specifically discussed in the Larson opinion and specifically distinguished on the ground that the allegations in that complaint whether that the people involved the members of the Maritime Commission had acted in excess of their statutory authority which is one of the two grounds upon which — under which suits maybe maintained under the Larson decision.

Felix Frankfurter:

When you say statutory authority, Mr. Friedman, except in a very vague and unilluminating way, most, correct me if I’m wrong, you know more about this certainly than I do, but most government officials — as to most government officials within the statute don’t illumine much what their powers are.

Daniel M. Friedman:

Well, I think that — I think that is true but — there is in every situation — I mean, well there are certainly areas where it’s clear and there are many areas which — on which is in that situation.

This is a threshold question but one of the —

Felix Frankfurter:

Are these provisions about the Congress appropriate so much money for so many officials et cetera?

And — and I don’t recall seeing many description of duties of ordinary government officials.

Daniel M. Friedman:

Well, but the — there are —

Felix Frankfurter:

There shall be a commissioner of these and there shall be commissioner of that and even when they said these duties shall be, they go into the [Inaudible] so far as —

Daniel M. Friedman:

But —

Felix Frankfurter:

— be able to tell from reading the statute, I know a person who did [Inaudible] the Governor of Massachusetts said he went to the revised statute of Massachusetts, looked up all the duties of the Government and he knew what exactly what he should do and what he shouldn’t do, but most people haven’t got that —

Daniel M. Friedman:

Well, I — I think Mr. Justice that the Larson case together with the Land case indicate that there are many difficult areas.

And I think it’s for that reason that in the Larson case, it was indicated that when a claim is made that a government official does something which he is not authorized to do under the statute, you have to specifically indicate the statutory limitations set forth.

And there maybe — may well be situations where you will have before passing on the doctrine of sovereign immunity at threshold legal question whether in fact there’s a fair allegation that the officers acting beyond his authority.

Felix Frankfurter:

Even in the Federal Tort Act we have all these problems that when he does — doesn’t do anything —

Daniel M. Friedman:

Very —

Felix Frankfurter:

— within the course of duty.

Daniel M. Friedman:

Most difficult ones.

Thank you.