United States v. Merz – Oral Argument – January 13, 1964

Media for United States v. Merz

Audio Transcription for Oral Argument – January 14, 1964 in United States v. Merz

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Earl Warren:

Number 65, United States, Petitioner, versus Louis T. Merz, counsel on the premise.

Mr. Marquis.

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.

Potter Stewart:

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

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.

Potter Stewart:

Was there any provision at all before — in — in the original federal rules or was there just provision of the first trial?

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.

William J. Brennan, Jr.:

I think that you were on the (Inaudible)

Roger P. Marquis:

It’s —

William J. Brennan, Jr.:

(Inaudible)

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.

(Inaudible)

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.

Roger P. Marquis:

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 —

A real estate appraiser?

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.

(Inaudible)

Roger P. Marquis:

There are three.

It provides for three.

The rule provides for three.

Tom C. Clark:

(Inaudible)

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.

Tom C. Clark:

Well, I hear you but, based on our (Inaudible).

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 —

(Inaudible)

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.

Roger P. Marquis:

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.

Potter Stewart:

Can I ask you how these Commissioners are compensated?

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.

Potter Stewart:

And the fees are set by the court on an auditable basis?

Roger P. Marquis:

The an — individual basis and they vary greatly throughout the country.

Potter Stewart:

Per diem or how?

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.

Potter Stewart:

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

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.

Potter Stewart:

Just as there are in criminal sentences.

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 —

Hugo L. Black:

(Inaudible)

Roger P. Marquis:

Sure.

Hugo L. Black:

(Inaudible)

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.

Arthur J. Goldberg:

(Inaudible)

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.

Arthur J. Goldberg:

(Inaudible)

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.

(Inaudible)

Roger P. Marquis:

Oh, yes.

Witnesses.

Roger P. Marquis:

Oh yes, there are this record — this record has the full transcript of the testimony just as with a jury trial.

Just exactly what we have here.

(Inaudible)

Roger P. Marquis:

Sometimes, sometimes not.

We have just — we’ve — here he did, that’s right.

He found (Inaudible)

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.

William J. Brennan, Jr.:

Are you supposed to do that in every case?

Roger P. Marquis:

No, in an easement case.

William J. Brennan, Jr.:

Yes.

Roger P. Marquis:

Yes, that’s the way you must value and that the only —

Potter Stewart:

The only — only allowable way to value in easement, value of an easement?

Roger P. Marquis:

I’ve never seen a record that had come up with any other thing except this formula which this witness had.

Potter Stewart:

But which you say is erroneous.

Roger P. Marquis:

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.

Arthur J. Goldberg:

(Inaudible)

Roger P. Marquis:

Well, I hadn’t — the terms —

Arthur J. Goldberg:

(Inaudible)

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.

Roger P. Marquis:

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.

Arthur J. Goldberg:

(Inaudible)

Roger P. Marquis:

That’s right sir.

Yes.

Arthur J. Goldberg:

(Inaudible)

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.

Arthur J. Goldberg:

(Inaudible)

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.

(Inaudible)

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.

(Inaudible)

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.

Roger P. Marquis:

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.

(Inaudible) — they ought to write an opinion in this case.

Roger P. Marquis:

It’s — there are various — it’s very —

That’s one way of putting it.

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.

(Inaudible)

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.

Well —

Roger P. Marquis:

For example or in other evaluations.

What I was getting at is, if one of these commissions makes findings of facts and conclusions of law that satisfies your test?

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.

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.

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 —

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)

Roger P. Marquis:

Oh no, I’m not —

Arthur J. Goldberg:

(Inaudible)

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.

Arthur J. Goldberg:

(Inaudible)

Roger P. Marquis:

And they can very reasonably —

Arthur J. Goldberg:

(Inaudible) in theory if the commission had come in and say (Inaudible)

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 —

Arthur J. Goldberg:

(Inaudible)

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 —

Arthur J. Goldberg:

Do you exclude (Inaudible)

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.

You can if you (Inaudible)

Roger P. Marquis:

Well, I —

(Inaudible)

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.

Byron R. White:

If there was a —

Roger P. Marquis:

But —

Byron R. White:

— I suppose the commission and actually, the company of (Inaudible)

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.

Byron R. White:

Certainly, (Inaudible)

Roger P. Marquis:

I don’t think they would agree in these normal cases.

You could disagree that far.

Byron R. White:

In normal cases?

Roger P. Marquis:

I don’t think that they would — not 4 and 5 to 1, I mean —

Byron R. White:

(Inaudible)

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 —

Byron R. White:

Now, what (Inaudible)

Roger P. Marquis:

If they did.

Byron R. White:

(Inaudible)

Roger P. Marquis:

Well, the first thing we want in —

Byron R. White:

(Inaudible)

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 —

Byron R. White:

(Inaudible)

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.

Roger P. Marquis:

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?

Earl Warren:

Mr. Meacham.

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.

Potter Stewart:

Is there any issue about that?

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 —

Potter Stewart:

But as to the estimate line share of the property, there was no controversy.

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.

Denver W. Meacham:

There —

Potter Stewart:

The Government wants them to do a little more than that —

Denver W. Meacham:

Yes sir.

Potter Stewart:

Or this case wouldn’t be here.

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 try this suit.

The landowners testify.

Denver W. Meacham:

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.