United States v. Merz

PETITIONER:United States
RESPONDENT:Merz
LOCATION:Cumberland Hospital

DOCKET NO.: 65
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 376 US 192 (1964)
ARGUED: Jan 13, 1964 / Jan 14, 1964
DECIDED: Feb 24, 1964

Facts of the case

Question

  • Oral Argument – January 13, 1964
  • Audio Transcription for Oral Argument – January 13, 1964 in United States v. Merz

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

    Earl Warren:

    Number 79, 2,872.88 Acres of Land, etcetera, et al., Petitioner, versus United States.

    Mr. Champion.

    Forrest L. Champion, Jr.:

    Mr. Chief Justice, may it please the Court.

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

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

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

    The last three rules are specifically involved.

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

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

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

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

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

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

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

    We maintain that those objections must be specific.

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

    We think that the better reason authority support that means.

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

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

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

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

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

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

    And the Fifth Circuit went along with that position.

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

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

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

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

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

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

    Forrest L. Champion, Jr.:

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

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

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

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

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

    There were no exceptions to these instructions by the Government.

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

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

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

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

    It is a preliminary question addressed to the fact finder.

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

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

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

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

    But now, let’s go further.

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

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

    What findings were made?

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

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

    They determined the value of the land taken in fee.

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

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

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

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

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

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

    They did not answer it except any particular witness.

    They arrived at their own independent impression of value.

    Forrest L. Champion, Jr.:

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

    Yes, sir.

    William J. Brennan, Jr.:

    Did counsel participate in preparation of instructions?

    Forrest L. Champion, Jr.:

    No, sir.

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

    And I –?

    William J. Brennan, Jr.:

    As to the instructions itself?

    Forrest L. Champion, Jr.:

    Sir?

    William J. Brennan, Jr.:

    Were you afforded an opportunity to make —

    Forrest L. Champion, Jr.:

    Yes sir, we were.

    William J. Brennan, Jr.:

    — suggestion as to the instructions?

    Forrest L. Champion, Jr.:

    Yes, sir.

    William J. Brennan, Jr.:

    Did counsel avail themselves of that?

    Forrest L. Champion, Jr.:

    Well, I — I did.

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

    William J. Brennan, Jr.:

    Did Government counsel make any suggestion?

    Forrest L. Champion, Jr.:

    No, sir.

    No exceptions, no suggestion.

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

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

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

    Prior decisions of the Fifth Circuit had accepted that readily.

    But this decision completely ignores it.

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

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

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

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

    The Commission returned an average of $81 per acre.

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

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

    Forrest L. Champion, Jr.:

    The Commission’s finding recall was 81.

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

    Now, the comparable sales are not ultimate facts.

    They are evidentiary facts.

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

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

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

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

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

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

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

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

    I have found no case to go that far.

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

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

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

    (Inaudible)

    Forrest L. Champion, Jr.:

    Yet — no, sir, I didn’t because it had not come out at the time that I wrote my reply brief.

    May I have the title?

    Forrest L. Champion, Jr.:

    Yes, sir.

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

    (Inaudible)

    Forrest L. Champion, Jr.:

    Yes, sir.

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

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

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

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

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

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

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

    Forrest L. Champion, Jr.:

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

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

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

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

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

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

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

    There’s nothing new in there.

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

    (Inaudible)

    Forrest L. Champion, Jr.:

    Yes, sir.

    323 F.2d 731 had no fault.

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

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

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

    We still have the transcript.

    The Commissioners are still available.

    The land has been covered up.

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

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

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

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

    Hugo L. Black:

    (Inaudible)

    Forrest L. Champion, Jr.:

    Three.

    Hugo L. Black:

    (Inaudible)

    Forrest L. Champion, Jr.:

    Three.

    Hugo L. Black:

    That’s all of them —

    Forrest L. Champion, Jr.:

    Three cases, all (Voice Overlap)

    Hugo L. Black:

    — does all of them adjacent to the river?

    Forrest L. Champion, Jr.:

    Sir?

    Hugo L. Black:

    All of them adjacent to the river?

    Forrest L. Champion, Jr.:

    Yes, sir.

    Hugo L. Black:

    They try to reach it?

    Forrest L. Champion, Jr.:

    The Walter Giffard, Earl of Buckingham.

    Yes, sir.

    Hugo L. Black:

    (Voice Overlap) —

    Forrest L. Champion, Jr.:

    Yes, the Walter Giffard

    Hugo L. Black:

    (Voice Overlap) I thought it’s Columbus?

    Forrest L. Champion, Jr.:

    There are about 108 — 100 miles, Your Honor, from Columbus.

    Hugo L. Black:

    South?

    Forrest L. Champion, Jr.:

    Yes, sir.

    Hugo L. Black:

    What was the — was the amount per acre given for their land the same as to each plot?

    Forrest L. Champion, Jr.:

    No, sir.

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

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

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

    That was further south toward George — toward Fort Gaines.

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

    Hugo L. Black:

    What are they using for?

    Forrest L. Champion, Jr.:

    They’re using it for farming.

    Hugo L. Black:

    What farming?

    Forrest L. Champion, Jr.:

    Grazing, grazing and peanuts.

    Yes.

    And the evidence showed tremendous production on that land.

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

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

    Hugo L. Black:

    So that was —

    Forrest L. Champion, Jr.:

    $160 per acre.

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

    Hugo L. Black:

    Does he take the fee?

    Forrest L. Champion, Jr.:

    Yes, sir.

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

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

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

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

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

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

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

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

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

    So you’ve got — but there is one other thing.

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

    Due process is not necessarily inherent in the administrative hearings.

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

    Hugo L. Black:

    (Inaudible)

    Forrest L. Champion, Jr.:

    No, sir.

    Except — I don’t see that due process is involved.

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

    Hugo L. Black:

    I asked that because I wonder what is the relevance of your argument about due process.

    Forrest L. Champion, Jr.:

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

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

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

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

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

    These findings could have been made.

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

    My thanks to the Court.

    Earl Warren:

    Did you — did you say the land is now covered up?

    Forrest L. Champion, Jr.:

    Yes, sir, we understand that it is now covered up because the water had coming on up toward Columbus now.

    Earl Warren:

    Yes, yes.

    Forrest L. Champion, Jr.:

    I think we’ll soon have a port of Columbus.

    Thank you, Your Honor.

    Earl Warren:

    Mr. Harrison.

    Harold S. Harrison:

    Mr. Chief Justice, may it please the Court.

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

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

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

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

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

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

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

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

    Potter Stewart:

    Mr. Harrison.

    Harold S. Harrison:

    Yes, sir.

    Potter Stewart:

    By the exception, do you mean the use of commissioners rather than a jury —

    Harold S. Harrison:

    Yes, sir.

    Potter Stewart:

    — the rule being a —

    Harold S. Harrison:

    In — in many —

    Potter Stewart:

    — jury trial?

    Harold S. Harrison:

    — districts, sir, it’s just automatic.

    They use them entirely on some districts.

    Potter Stewart:

    Generally speaking, the — the — is it — is it accurate to say that as a generality, the Government usually wants to jury and the landowners usually want commissioners?

    Or is that enacted?

    Harold S. Harrison:

    Well, we have gotten away from the routine demand of jury trial, Your Honor.

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

    And in those —

    Potter Stewart:

    There’s room for that — there’s room for that under the rule.

    Harold S. Harrison:

    Oh, very much.

    Potter Stewart:

    I mean, that’s clearly provided for.

    Harold S. Harrison:

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

    Harold S. Harrison:

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

    But this was big business, Your Honors.

    Here, in this —

    Earl Warren:

    (Inaudible) when did you — when did you start to change this policy of amending juries?

    Harold S. Harrison:

    Well, actually — yes, it has since — since this case, sorry.

    Earl Warren:

    For the last two year, hasn’t it?

    Harold S. Harrison:

    Yes, sir.

    Earl Warren:

    Before that, the Government (Voice Overlap) —

    Harold S. Harrison:

    Before that, we would —

    Earl Warren:

    — practically all the time.

    Harold S. Harrison:

    — we would have a routine demand for a jury trial and as Mr. Marquis indicated yesterday, then as the cases came up.

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

    Earl Warren:

    In a — in a case like the Hanford — Hanford condemnation where there were thousands of — of items at the case, Government demanded the jury in every one of those, didn’t it?

    Harold S. Harrison:

    Yes, in many of the early projects we did.

    Earl Warren:

    And then most of the — most of those big ones are the West that did that, have thousands of pieces of land, parts of the land, the Government always demanded the jury, did it not?

    Harold S. Harrison:

    It did before.

    Earl Warren:

    And then —

    Harold S. Harrison:

    Yes sir.

    Earl Warren:

    — and then the Court was so clogged that for years and years, they couldn’t get their money after the — after the Government had taken it from them, isn’t that correct?

    Harold S. Harrison:

    That happened, Your Honor.

    And it’s —

    Earl Warren:

    It happened — it happened —

    Harold S. Harrison:

    Yes sir.

    Earl Warren:

    — habitually, is it not?

    Harold S. Harrison:

    Well, and there — there were number of cases where we did feel that a commission was proper.

    Earl Warren:

    And did —

    Harold S. Harrison:

    You had a —

    Earl Warren:

    — why wouldn’t it be in the big one like the Hanford case where you have thousands of — of items or thousands of partials rather?

    Harold S. Harrison:

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

    Earl Warren:

    But didn’t the Government —

    Harold S. Harrison:

    — that —

    Earl Warren:

    — didn’t the Government hold up those cases for years and years and clog the whole — the court system up in that part of the country because —

    Harold S. Harrison:

    Yes sir.

    Earl Warren:

    — they demand juries who wouldn’t try them before the court and wouldn’t try them before a commissioner?

    Harold S. Harrison:

    That did happen.

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

    Earl Warren:

    Yes.

    Harold S. Harrison:

    — that we’re —

    Earl Warren:

    I’m sure.

    Harold S. Harrison:

    — we’re going tremendously on it.

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

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

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

    So this is tremendously big business.

    Hugo L. Black:

    Was the Government selling this information method?

    Harold S. Harrison:

    No, sir.

    No, in this case we’re not.

    Earl Warren:

    Well, the Government has —

    Harold S. Harrison:

    No, sir.

    Earl Warren:

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

    Harold S. Harrison:

    There was opposition to it, Your Honor.

    Earl Warren:

    By — by the Department of Justice, didn’t the Department of Justice go before the appropriation committee and ask him to cutoff the appropriation for commissioners?

    Harold S. Harrison:

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

    Yes, sir.

    Earl Warren:

    Had it been done — would’ve been on the — in the State of — of Georgia in — in the courts, we would not have been able to have any commissioners at any place no matter — no matter how —

    Harold S. Harrison:

    Yes, sir.

    Earl Warren:

    — how necessary they might be in the — in the multiple condemnation suit?

    Harold S. Harrison:

    Yes sir.

    The —

    Hugo L. Black:

    May I ask you if you know precisely how commissioner has proceeded?

    Harold S. Harrison:

    Well, yes, sir.

    In general, there are —

    Hugo L. Black:

    You appoint — you appoint three commissions.

    Harold S. Harrison:

    Yes.

    And there’s no require — there was no requirements filled out as to what —

    Hugo L. Black:

    (Voice Overlap) they agree.

    Harold S. Harrison:

    — their qualifications need there be — need be.

    Hugo L. Black:

    Are they appointed from — from the community?

    Harold S. Harrison:

    Generally, yes, sir.

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

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

    Hugo L. Black:

    Now, when they start, do they hear witnesses?

    Harold S. Harrison:

    Oh, yes, sir.

    Hugo L. Black:

    Do they take witness evidence stenographically?

    Harold S. Harrison:

    Yes, sir.

    Hugo L. Black:

    Are there objections in the — objections be made for the introduction of evidence?

    Harold S. Harrison:

    There can be, Your Honor, but the — the Commission itself determines the admissibility of the evidence.

    And frequently, for example —

    Hugo L. Black:

    Is that final under the — under the rule?

    Harold S. Harrison:

    No, you can make your objection to it in some — the circuit has been indicated that the Commission should receive anything whether normally admissible or not.

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

    But —

    Hugo L. Black:

    Is all the evidence sent to the — the court when it finally got along to review the — the report of the Commission?

    Harold S. Harrison:

    Sometimes yes and sometimes no.

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

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

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

    Hugo L. Black:

    On what grounds generally does — can the court set aside or refuse to accept the findings of the Commission?

    Harold S. Harrison:

    Where they are inadequate for reviewing, Your Honor —

    Hugo L. Black:

    So might —

    Harold S. Harrison:

    — and I think that —

    Hugo L. Black:

    — for review, suppose they are adequate, suppose they give all of the facts —

    Harold S. Harrison:

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

    Hugo L. Black:

    What do you say a rational what?

    Harold S. Harrison:

    The rational foundation, the reasons —

    Hugo L. Black:

    What — what —

    Harold S. Harrison:

    — the basis and reasons for —

    Hugo L. Black:

    You mean, they can — the Commissioner —

    Harold S. Harrison:

    –the award.

    Hugo L. Black:

    — the Commissioner lacks a rational foundation?

    Is that what you mean?

    Harold S. Harrison:

    Yes, sir.

    We’re not given the grounds of decision.

    And I’d like to go into and show you —

    Hugo L. Black:

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

    Harold S. Harrison:

    Yes.

    Well, I — I think —

    Hugo L. Black:

    Can — can the court set it aside on the ground that you think is too much?

    Harold S. Harrison:

    Normally not.

    No.

    No —

    Hugo L. Black:

    Is he allowed to do so or is he denied that right?

    Harold S. Harrison:

    I think it’s one of the difficulties when they start talking in terms of Rule 52 (a).

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

    Hugo L. Black:

    Same — you mean increases or decreases?

    Harold S. Harrison:

    Either.

    Hugo L. Black:

    Either.

    Harold S. Harrison:

    Either.

    Hugo L. Black:

    Are you — are you saying that — you think they do not have that power?

    Harold S. Harrison:

    Yes, sir, I am.

    Harold S. Harrison:

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

    And one of the —

    Hugo L. Black:

    Modify to what extent?

    Harold S. Harrison:

    Sir?

    Hugo L. Black:

    Modify, how?

    Harold S. Harrison:

    Well, the —

    Hugo L. Black:

    Modify the amount?

    The basic thing and this is amount.

    Harold S. Harrison:

    Yes, sir, it is.

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

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

    William J. Brennan, Jr.:

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

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

    Harold S. Harrison:

    Yes, sir.

    William J. Brennan, Jr.:

    — if it’s clearly erroneous.

    Harold S. Harrison:

    Yes, sir.

    William J. Brennan, Jr.:

    Now, may — may it — they discovered it’s clearly erroneous.

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

    May the District Court do that?

    Harold S. Harrison:

    We think it should not that the —

    William J. Brennan, Jr.:

    Well, not whether it should not —

    Harold S. Harrison:

    Yes, sir.

    William J. Brennan, Jr.:

    — may it do so.

    Harold S. Harrison:

    No, sir.

    William J. Brennan, Jr.:

    May not in the (Voice Overlap) —

    Harold S. Harrison:

    I don’t — I don’t think — I don’t think it should other proper construction of 53 (e) (2).

    Byron R. White:

    Do you mean all of the provisions of the master’s rule doesn’t apply to the case?

    Harold S. Harrison:

    Oh, no, sir.

    No, sir, it does not.

    Byron R. White:

    So it may not modify the report?

    Harold S. Harrison:

    Yes, it may modify.

    Byron R. White:

    Here — here, but the — may the —

    Harold S. Harrison:

    Yes, sir.

    Byron R. White:

    — the additional evidence?

    Harold S. Harrison:

    Yes, sir, it may.

    Byron R. White:

    Like a master made?

    Harold S. Harrison:

    Yes.

    Byron R. White:

    Because the master’s rule — report after hearing may adopt the report or may modify it or may reject it in the (Inaudible) impart or may hear and receive further evidence or may recommit it to instruction.

    Harold S. Harrison:

    Yes, sir.

    Byron R. White:

    Now, that certainly applies to the Commission.

    Harold S. Harrison:

    Yes, yes, it does.

    Byron R. White:

    Well, then in any — it doesn’t need to hear anymore evidence in order to modify it either.

    He can do it on the record.

    William J. Brennan, Jr.:

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

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

    Harold S. Harrison:

    The — if credibility of witness is involved, then no.

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

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

    (Inaudible)

    William J. Brennan, Jr.:

    I expect the question is whether under the rule, he may nevertheless.

    Harold S. Harrison:

    Well, I think he may not it if credibility of witness is involved.

    May I —

    Hugo L. Black:

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

    Harold S. Harrison:

    Yes, sir, he can.

    He can.

    May —

    Hugo L. Black:

    Can the Court of Appeals give him?

    Harold S. Harrison:

    Yes, sir.

    Hugo L. Black:

    Did it have it in this — this case?

    Harold S. Harrison:

    It did.

    Hugo L. Black:

    And the entire record before it?

    Harold S. Harrison:

    Yes.

    Hugo L. Black:

    Was it very long?

    Harold S. Harrison:

    Several volumes, Your Honor, yes.

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

    Now, may I —

    Hugo L. Black:

    Do you subscribe, are you arguing for the principle that in order to make findings that are required, the submission is — must say, “We take this witnesses’ evidence and we don’t believe it.

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

    Are you arguing to some kind of findings like that?

    Harold S. Harrison:

    I’m arguing that there — there must be sufficient to show the hows and whys.

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

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

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

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

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

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

    May I —

    Hugo L. Black:

    Is that — is that what I asked you?

    It’s required, maybe it is.

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

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

    Harold S. Harrison:

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

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

    Hugo L. Black:

    A subsidiary of facts —

    Harold S. Harrison:

    Now, certainly that’s — that’s good law.

    Hugo L. Black:

    — findings of subsidiary facts would be — that wouldn’t require this detailed statement about what the witnesses told, would it?

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

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

    Harold S. Harrison:

    Well —

    Hugo L. Black:

    — to decide how far they must go with reference to the witnesses.

    Harold S. Harrison:

    In — in the Dalehite opinion, Mr. Justice Black, this Court spoke of the preliminary and basic facts.

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

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

    Hugo L. Black:

    I never thought —

    Harold S. Harrison:

    This —

    Hugo L. Black:

    — of those words myself, as — and holding the idea that you had take out the witnesses one by one, say, what part of the evidence you believed and didn’t believed.

    Harold S. Harrison:

    Let me explain some of the things that are missing here but I think it’ll — it’ll help — help show what we feel the parties were entitled to.

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

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

    (Inaudible)

    Harold S. Harrison:

    Well, certainly — no, it’s not impermissible, Your Honor.

    (Inaudible)

    Harold S. Harrison:

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

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

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

    (Inaudible)

    Harold S. Harrison:

    He — yes, he affirmed the award but that’s all.

    Now —

    (Inaudible)

    Harold S. Harrison:

    They are all — we feel low that when such a highly unusual result of this is reached, certainly, there should be some reason.

    We should know why.

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

    We feel there’s — there’s many other things.

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

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

    The —

    (Inaudible)

    Harold S. Harrison:

    At least that would have given us the reason we’d have known what it did in that respect.

    (Inaudible)

    Harold S. Harrison:

    No.

    (Inaudible)

    Harold S. Harrison:

    I’m —

    (Inaudible)

    Harold S. Harrison:

    Well, I’m — I’m saying, we don’t know what they did.

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

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

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

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

    Earl Warren:

    (Inaudible)

    Harold S. Harrison:

    We don’t know what they did.

    Earl Warren:

    (Inaudible)

    Harold S. Harrison:

    Yes, sir.

    Earl Warren:

    (Inaudible)

    Harold S. Harrison:

    Yes, sir.

    Earl Warren:

    (Inaudible)

    Harold S. Harrison:

    I don think so, no, sir.

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

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

    Access road is a similar thing.

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

    We simply don’t know.

    Earl Warren:

    (Inaudible) object to these findings?

    Harold S. Harrison:

    Oh, yes, sir.

    Objection —

    Earl Warren:

    When — where was the first — when was the first opportunity you had to object to the finding?

    Harold S. Harrison:

    Well, after the commission report was received, Your Honor, and then —

    Earl Warren:

    Right.

    Harold S. Harrison:

    — objections were filed.

    Earl Warren:

    Were — were filed —

    Harold S. Harrison:

    Oh, yes.

    Earl Warren:

    — with the trial court?

    Harold S. Harrison:

    With — with the trial court.

    Yes, sir.

    Earl Warren:

    Did you — did you in — in those objections specified what — what you thought the — they should contain?

    Harold S. Harrison:

    The objections appear, first set for example on page 50 to 51 —

    Earl Warren:

    I know, but did you —

    Harold S. Harrison:

    50 —

    Earl Warren:

    — did you specify what —

    Harold S. Harrison:

    Each —

    Earl Warren:

    — what respects if they were wrong in — in —

    Harold S. Harrison:

    Not — not in broad detail or not in detail, Your Honor.

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

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

    Earl Warren:

    Well, did you — did you comment on — on wherein they lacked specificity?

    Harold S. Harrison:

    No, sir and that —

    Earl Warren:

    Why wasn’t that done?

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

    Harold S. Harrison:

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

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

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

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

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

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

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

    Earl Warren:

    Why couldn’t you make it there as well as you can here?

    Harold S. Harrison:

    Unless you know, I don’t think you have to.

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

    The Circuit Court was not persuaded by this argument below.

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

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

    Byron R. White:

    — you mean by that of the hearing, what do you say?

    Harold S. Harrison:

    I think, I would do as I do here and explain the — the things that we feel are necessary that we — we should’ve be —

    Byron R. White:

    How did you know it isn’t complete?

    Harold S. Harrison:

    Well, it’s — it’s incomplete, Your Honor, where you’re not given any of these grounds of decision using the words of this case.

    Byron R. White:

    But you can’t say what’s wrong with it.

    Harold S. Harrison:

    No, I don’t think you can without —

    Byron R. White:

    Well, you say that ground has simply had been given —

    Harold S. Harrison:

    Well, yes, you — you can go that far but as far as specifics, this Court isn’t —

    Byron R. White:

    You didn’t go — you didn’t go that far, the objection.

    Harold S. Harrison:

    No, sir, we didn’t.

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

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

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

    We think —

    Earl Warren:

    (Inaudible) could’ve required the Commissioners to make the findings if you had pointed out the efficiency of those findings, wouldn’t it?

    Harold S. Harrison:

    Yes, sir.

    Earl Warren:

    And my question —

    Harold S. Harrison:

    We —

    Earl Warren:

    — is if — if that could’ve been done there, why shouldn’t it been down there instead of you now pointing out the deficiency to us but having failed to do it with the trial court?

    Harold S. Harrison:

    We did do it, of course, to some extent as I say.

    Each one of the objections that —

    Earl Warren:

    Well, was it sufficiently done?

    Harold S. Harrison:

    I don’t think it’s necessary, Your Honor.

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

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

    May I — may I say this that —

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

    Harold S. Harrison:

    Yes, sir, and that — that’s the position.

    Potter Stewart:

    Is that —

    Harold S. Harrison:

    All —

    Potter Stewart:

    — what you’re — is that what you’re saying?

    Harold S. Harrison:

    Yes, sir.

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

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

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

    Thank you.