120 F. 637 | 2d Cir. | 1903
In September, 1897, the Treasury Department requested the Attorney General to give such instructions to the United States Attorney for the District of Connecticut as might be necessary to have proceedings in condemnation instituted against certain real estate in the city of Bridgeport owned by Judson, in order that the United States might acquire title thereto, for an addition to the post office in that city, authorized by act of July 19, 1897. The Attorney General forwarded a copy to the District Attorney, with instructions to “institute proceedings on behalf of the United States for the condemnation of the land'referred to.”
The statutes of Connecticut give the consent of the state to the acquisition by the United States by purchase, condemnation, or otherwise for custom houses, post offices, etc. There is no suggestion that the methods by which the United States shall seek to condemn land are to be in any wise different from those to be pursued by the state, or by some of its political divisions. The method prescribed for the state, for counties, towns, and school districts, is by the appointment of a committee. Application is to be made to the appropriate court or judge, the owner being brought into court by summons or other civil process. Said court or judge, after due notice of said application, shall appoint a committee of three disinterested men, who,
The District Attorney undertook to. have the land condemned by such a proceeding. A petition to appoint a committee who should view the land, ascertain its value, assess just damages, etc., as provided, in the statute, was prepared October 18, 1897, and within a few days was served on Judson, and on some others whose lands were at first included, but as to whom discontinuance has since been entered. Petition was accompanied by a summons directing respondent to appear before the District Judge on the first Tuesday of December, 1897.
What happened on the return day does not appear. The record discloses no action for nearly six months. On May 28, 1898, which, as the bill of exceptions says, was “the day assigned for the appointment of the committee as prayed for,” the District Attorney and the-attorney for Judson appeared, and informed the court that the case would furnish no business at that time, as the parties would probably reach an agreement as to a committee. At that time they had agreed together as to the appointment of Messrs. Robertson and Marsh. Subsequently they executed the following instrument, entitled in the-United States District Court, with the name of the pending action,. “Lyman Gage, Treasurer, v. R. M. Judson.” The title of the action was subsequently changed to “United States v. R. M. Judson”:
“Know all men that we, Charles W. Comstock, United States Attorney for the district of Connecticut, and Robert E. De Forest, of Bridgeport, attorney for the said R. M. Judson, do hereby promise and agree, to and with each other, to submit, and do hereby submit, all questions and claims between the said United States and the said R. M. Judson, in the action above mentioned and pending in said court, to the arbitrament and determination of Alex. C. Robertson, of Montville, Connecticut, Charles B. Marsh, of Bridgeport, Connecticut, and Frederick A. Bartlett, of Bridgeport, Connecticut, and a decision-, and award of a majority of said arbitrators shall be final and conclusive upon the approval of the award so made by the court.
“The hearings to be in Bridgeport.
“In witness whereof we have hereunto set our hands and seals this 8th day -
of June, A. D. 1898. Charles W. Comstock. [L. S.]
“Robert E. De Forest. [L. S.]”
The arbitrators viewed the property, heard evidence, ascertained the value, and assessed damages, the District Attorney taking part in all proceedings before them. On August 8th they signed an award $32,000 to Judson for his land and damages, and on August 10th the District Attorney and the attorney for Judson filed this award and the agreement to arbitrate in the United States District Court. On-.
The committee thus appointed gave notice, viewed the land, heard evidence, ascertained the value to be $15,525, assessed to Judson the said sum of $15,525 as his damages, and on January 25, 1901, reported their doings to the District Judge. Remonstrance against the acceptance of the report was filed by Judson’s attorneys, and an answer thereto by the District- Attorney, all in conformity to Connecticut practice; and on January 7, 1902, after due consideration, the report of the committee was accepted and confirmed, and judgment entered directing the payment of $15,525 by the United States, and that upon such payment the land should become the property of the United States. This writ of error was sued out to review such judgment.
These facts have been abstracted from the record with considerable difficulty, by reason of the clumsy manner in which it has been put together. It contains many papers which have nothing whatever to do with the matters sought to be reviewed by the writ of error. It seems as if all the papers which were to be found on file in the clerk’s office, entitled in this cause, had been hastily gathered together without any regard to their logical sequence, and certified to this court, without the slightest effort to eliminate those which have nothing to do With this appeal.
The remonstrance against the acceptance of the report contains many averments of “irregular and improper conduct” on the part of the committee in excluding testimony offered on behalf of Judson. Of these, certainly one is most serious, and might, if it were analyzed, be sufficient ground for reversal; but such a reversal would leave the.fundamental question undisposed of. The important point to be de
When application was made to vacate the first judgment there was nothing before the court to show any irregular or improper conduct in the performance of their duty on the, part of the persons who made the original award'; there was nothing to show that their award was so high that the court should have refused to accept it; and the District Judge in the order vacating both judgment and award expressly states the grounds therefor as follows: “Inasmuch as the court was never called upon to appoint any committee to ascertain damages for the taking of the land in question, and inasmuch a.s the arbitrators herein acted without any authority from or appointment by the court.” These grounds are more fully set forth in the following excerpts from the opinion:
“No order of appointment of a committee was ever made by the court, the court never having known the names of the persons acting as committee [prior to the presentation of their report]. The position of respondent is that the judge of a court may delegate to counsel‘the appointment of a committee; that thereupon they may agree upon such committee, and such committee may act without the names of the persons agreed upon having been approved by the court. * * * [After citing several Connecticut cases, the opinion proceeds:] * * * In all these cases it was held that the party had waived objection by not taking it until after the conclusion of the trial and decision against him. In all of these cases the party had a right to waive the objections. In all, except the criminal case, the party might have submitted his claims to a tribunal, or agreed upon the question at issue without the aid of the court. The District Attorney had no such right. He could not legally agree upon any sum to be paid for the land; he could not agree to submit the case to arbitration; he could not bind the United States by an agreement upon a committee; the United States cannot be estopped by his act in such a matter. While a committee nominated or assented to by a District Attorney might have been appointed by the court upon motion, it would have been the duty of the court to satisfy itself that the committee was a proper one before appointing it. It is possible that the court, if informed that certain persons had been agreed upon, might have considered the assent of the District Attorney sufficient evidence of their fitness without further inquiry. It is possible, and perhaps probable, that the court would have made some further inquiry of counsel or otherwise in regard to the qualifications of the committee agreed upon before appointing them. However this may be, the court certainly never did appoint them, unless it be the law that the judge, when informed that counsel would probably agree upon a committee, can then and there appoint- such a committee as the counsel may thereafter agree upon.”
The contention of respondent’s counsel in this court is not that the judge may delegate to counsel the appointment of a committee, but that where a series of’acts such as is above rehearsed has taken place, and an award has been accepted, without any remonstrance, and judgment confirming the action of the putative committee has been entered without objection, the party seeking to exercise the right of eminent domain, whether it be a town, or the state of Connecticut, or the United States, is estopped from asking to have that judgment vacated on the ground that individuals agreed upon by the counsel
We are satisfied, however, that no attempt was made by the respondent’s counsel and the District Attorney to usurp the judicial functions, and to choose a “committee,” under the statutes first above cited, and concur in the finding of the District' Judge that the three individuals were agreed upon, not as a committee, but as arbitrators. The form of the written agreement for submission, and of the decision filed awarding damages, and, indeed, the very circumstance that counsel undertook themselves to agree upon a choice of individuals, when the statute expressly provided that the “court or judge shall appoint” them, all most persuasively indicate that a reference to arbitration was what they had in view and carried out.
It will be necessary, therefore, to refer to the statutes of Connecticut which provide for arbitrations. In section 957, Revision 1902, there is provision made for the submission of any controversy to arbitration upon “an agreement.signed and sworn to by any parties.” It is unnecessary to state the details of this section, because it manifestly deals with a controversy which has not ripened into an action, and because the District Attorney neither by virtue of his office nor by any special designation was authorized to bind the United States by submitting such a controversy to arbitration. The next section (958) is as follows ;
“See. 958. When the parties to any action, pending in court, desire to refer it to arbitration, each may choose one arbitrator, and .the court may appoint a third; and the award of such arbitrators, returned to, and accepted by, the court, shall be final, and judgment shall be rendered pursuant thereto, and execution granted thereon, with costs.”
The proceeding to condemn the property of Judson was an action pending in court, and as such could be referred under this section, precisely as other actions on contract or in tort may, in proper cases, be referred to be tried without a jury. An application for such reference is an incident of the action, to be anticipated by both parties when action is brought. It is an incident which, under universal practice, it is within the province of the respective attorneys to control. No provision of the section requires the seal, or the oath, or the signature of the parity (as in section 957) to be presented to the court before reference is had. The assent to such an arbitration is one which, it is within the attorney’s power to give, by virtue of his office as attorney in charge of the party’s litigation in such pending action, and, whatever differences there may be between him and his client as to whether, such reference should or should not be agreed to, the other party has the right to rely on the attorney’s power to represent his client in the procedure regulated by this section just as much as he has in any steps he may take conformably to the recognized procedure in pending actions. No one advances the proposition here that in the case of a private litigant the assent expressed by his counsel to an arbitration under section 958 could be repudiated by the client after the arbitrators had made their award, and no case cited warrants any such conclusion.
“Condemnation suits in behalf of the United States to acquire lands . for public use are, by the act of Congress of August 1, 1888 [U. S.
This court held In re Secretary of the Treasury, 12 C. C. A. 235, 64 Fed. 472, that when “the United States institute a suit they * * * stand with reference to the rights of the defendants precisely as private suitors, except that they are exempt from costs and' from affirmative relief against them beyond the demand or property in controversy. The Siren, 7 Wall. 152, 19 L. Ed. 129.”
So, too, when the federal government undertakes to enter into a litigation with an individual, and to prosecute that litigation in conformity with the procedure of some particular state, it will be bound by the acts of its attorney as other litigants are when prosecuting or defending suits under such procedure. When such pro.cédure recognizes the authority of the attorney, by virtue of his office, to' bind his client by admissions made in pleading, by stipulations as to forms of proof, by failure to object to testimony, by consenting to proceed before 11 jurors, by moving for or agreeing to a reference, precisely the same rule must be applied to the United States appearing by its District Attorney. We are therefore clearly of the opinion that the District Attorney had authority to bind the United States by indicating a desire to refer the pending action against Judson to arbitration and by expressing a choice as to the arbitrators.
It mav be noted that whereas sections 4103, etc., provide that the court “shall” appoint the committee, the section regulating arbitrations
We have, then, a case where both sides by their competent representatives agreed to refer a pending action to arbitration under section 958, where they each chose an arbitrator, where they each agreed to the one chosen by the other, where they both agreed to a third arbitrator, whom otherwise the court would have appointed, where they proceeded before the three persons thus selected without objection by either, put in their proofs, presented their arguments, and awaited the award without any suggestion that the tribunal of their own selection was incompetent to act. Under the procedure in Connecticut as administered by its courts, such objection came too late. Both sides were estopped when the award came before the court from insisting on the objection that the name of the third arbitrator, who was the choice of both sides, had not been presented to the court for its action before the arbitrators proceeded with the cause. Such is the plain import of the authorities cited, in the case of litigants other than the United States, and, as was pointed out before, this sort of arbitration being, an incident of the procedure to condemn land, the same rule must apply to the United States when it is prosecuting a suit in conformity to such procedure.
There is another difference between the statutory provisions for trial by “committee” and trial by “arbitrators.” In the former case, when the report is presented to the court or judge, he or it “may accept the same, or may, in the case of any irregular or improper conduct on the part of said committee in the performance of their duty, reject it.” This confines the power to reject to cases where the irregular or improper conduct, etc., is shown. In section 958 the language is, “the award * * * returned to and accepted by the court shall be final,”' etc. The power to accept would seem to carry with it the power to reject, and it was so held in Re Curtis-Castle Arbitration, 64 Conn. 501, 30 Atl. 769, 42 Am. St. Rep. 200. That case held, however, and it seems to be a leading case in Connecticut, that this did not import a
The judgment of January 7, 1902, is reversed, and the cause remanded, with instructions to vacate the order of May 23, 1899.
