MR. JUSTICE RUTLEDGE delivered the opinion of the Court.
The proceeding is for the condemnation of land in Madison County, Illinois, under the War Purposes Act of 1917.
The petition for condemnation was filed in the District Court March 31, 1942. The same day an order for immediate possession was entered ex parte. On November 12, 1942, pursuant to the Declaration of Taking Act of February 26, 1931,
Thereafter, on August 2, 1943, an order for service of process by publication was entered, and in October following petitioners moved to vacate the "judgment" and to dismiss the petition as to Tract ED-7. After this the Government amended its petition
We think the judgment was right. Petitioners' motions raised issues grounded in contentions that the taking was not for a purpose authorized by the War Purposes Act.
Their right to appeal rests upon § 128 of the Judicial Code. This limits review to "final decisions" in the District Court. A "final decision" generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. St. Louis, I.M. & S.R. Co. v. Southern Express Co., 108 U.S. 24, 28. Hence, ordinarily in condemnation proceedings appellate review may be had only upon an order or judgment disposing of the whole case, and adjudicating all rights, including ownership and just compensation, as well as the right to take the property. This has been the repeated holding of decisions here.
The rule applies to proceedings under the War Purposes Act of 1917.
Furthermore, the 1917 act contemplated emergency action, to the extent that upon the filing of the petition immediate possession might be taken and the lands occupied "for military purposes" during war "or the imminence thereof." This purpose, it seems clear, would be largely defeated, if entry must be deferred until specific challenges to jurisdiction and the sufficiency of the petition are determined seriatim, not only by ruling of the trial court but by separate appeals from each ruling which, if sustained,
Indeed, we do not understand petitioners to urge that the 1917 act without more accomplishes the departure. They say rather that it does so when used in conjunction with the Declaration of Taking Act of 1931. It is the "judgment upon a declaration of taking" and the subsequent order denying their motion to vacate this "judgment" and to dismiss the proceedings which they contend are "final decisions" within § 128 and therefore appealable. It is "judgments" of this character which the decisions of Circuit Courts of Appeals, upon which petitioners rely,
We dispose shortly of the motion, or that part of it, which was directed at dismissal of the proceedings, in so far as it may require treatment separately from the motion to vacate the "judgment," if it does so at all. Had this motion been granted and judgment of dismissal been entered, clearly there would have been an end of the litigation and appeal would lie within § 128. United States v. Carey, 143 F.2d 445; United States v. Marin, 136 F.2d 388. But denial of a motion to dismiss, even when the motion is based upon jurisdictional grounds, is not immediately reviewable. Cf. Roche v. Evaporated Milk Assn., 319 U.S. 21. See also Dieckmann v. United States, 88 F.2d 902. Certainly this is true whenever the question may be saved for disposition upon review of final judgment disposing of all issues involved in the litigation or in some other adequate manner. As will appear, we think such a remedy is available in this case.
The "judgment" and the order denying the motion to vacate it stand no better. The 1931 act, like that of 1917, contains no language purporting to change the general rule relating to appeals in condemnation proceedings.
This seems reinforced by § 4. It makes the right to take possession and title "in advance of final judgment" additional to other rights, powers or authority conferred by federal or local law, and expressly states that this right "shall not be construed as abrogating, limiting, or modifying any such right, power, or authority." One of the rights of the Government under preexisting federal law was the right not to have the proceeding, or the taking of
Moreover, the statute does not purport in terms to authorize such a "judgment" as was entered in this cause or to make its entry the event upon which title is changed, if so summary a procedure could be valid. The "judgment" apparently was entered ex parte, prior to service of process or publication of notice. Cf. Pennoyer v. Neff, 95 U.S. 714. By the terms of § 1, "Upon the filing said declaration of taking [in the condemnation proceeding] and of the deposit in the court . . . title . . . shall vest in the United States . . . and said lands shall be deemed to be condemned and taken for the use of the United States, and the right to just compensation for the same shall vest in the persons entitled thereto; and said compensation shall be ascertained and awarded in said proceeding and established by judgment therein . . ."
We think the purpose was to leave intact the owner's remedy existing before the statute was adopted. For one thing, the statute is not an independent one for condemnation. It provides for no new condemnation proceeding. It merely affords steps ancillary or incidental to suits brought under other statutes; and was so used in this case in conjunction with the suit brought under the Act of 1917. Its declared purpose is to expedite, in the cases to which it applies, the construction of public buildings and works "by enabling possession and title of sites to be taken in advance of final judgment in proceedings for the acquisition thereof under the power of eminent domain," (emphasis added) as the title states, and it applies to "any proceeding . .. instituted . . . under the authority of the United States for the acquisition of any land . . . for the public use . . ." § 1. The procedure clearly is ancillary to the main condemnation proceeding, cf. United States v. 17,280 Acres of Land, 47 F.Supp. 267, 269, is intended to dovetail with it and by § 4 is declared expressly to provide rights which are to be "in addition to" preexisting rights and are not to "be construed as abrogating, limiting, or modifying" them. This provision, inserted primarily to safeguard the Government's interest, is not expressly so limited; and we think it may be applied also to safeguard
While the language and the wording of the act are not wholly free from doubt, we see no necessary inconsistency between the provisions for transfer of title upon filing of the declaration and making of the deposit and at the same time preserving the owner's preexisting right to question the validity of the taking as not being for a purpose authorized by the statute under which the main proceeding is brought. That result may be reached if the statute is construed to confer upon the Government, upon occurrence of the events specified, only a defeasible title in cases where an issue concerning the validity of the taking arises. So to construe the act would accomplish fully the purposes for which it was adopted in the large number of cases where no such issue is made. In others this would go far toward doing so, for not all such issues will be followed through to final decision or, if so followed, will turn out adversely to the Government. The alternative construction, that title passes irrevocably, leaving the owner no opportunity to question the taking's validity or one for which the only remedy would be to accept the compensation which would be just if the taking were valid, would raise serious question concerning the statute's validity. In any event we think it would run counter to what reasonable construction requires.
Some stress is placed upon the provisions of §§ 3 and 5 relating to irrevocable commitment of the United States to pay the amount ultimately to be awarded,
Accordingly, in our opinion the right of the owner to challenge the validity of the taking, for nonconformity with the prescribed statutory purposes, was not destroyed by the 1931 act. Nor was the right to do this upon appeal, existing before that act was adopted, affected. No such "severance" was made as the court deciding the Puerto Rico case thought was created. No new right of separate appeal was given. The preexisting right of appeal, including appeal on grounds relating to validity of the taking, remained in force to be exercised when and only when final judgment, disposing of the cause in its entirety, has been rendered. The statute makes no other explicit provision. Nor is one so clearly implied that we can make it. The weightier implications are the other way.
We have not discussed other issues presented or suggested in the briefs or argument, since that has not been necessary to the disposition of this cause. These include the question whether, when possession has been taken and damage has been done to the premises in the course of proceedings not authorized, the remedy by appeal is adequate. That issue has not been made in this case, since the grounds urged rest upon the provisions of the 1931 act relating to title and their effect, through the proceedings had, upon the petitioners right. They do not relate simply to the taking of possession, the right to take it or damages resulting from exercise of that right, apart from the question of title. Possession in this case had been taken, pursuant to the terms of the 1917 act, prior to the time of the purported transfer of title. It will be time enough to consider
The judgment is
MR. JUSTICE ROBERTS and MR. JUSTICE DOUGLAS concur in the result.
"That hereafter the Secretary of War may cause proceedings to be instituted in the name of the United States, in any court having jurisdiction of such proceedings for the acquirement by condemnation of any land, temporary use thereof or other interest therein, or right pertaining thereto, needed for the site, location, construction, or prosecution of works for fortifications, coast defenses, military training camps, and for the construction and operation of plants for the production of nitrate and other compounds and the manufacture of explosives and other munitions of war and for the development and transmission of power for the operations of such plants; such proceedings to be prosecuted in accordance with the laws relating to suits for the condemnation of property of the States wherein the proceedings may be instituted . . . And provided further, That when such property is acquired in time of war, or the imminence thereof, upon the filing of the petition for the condemnation of any land, temporary use thereof or other interest therein or right pertaining thereto to be acquired for any of the purposes aforesaid, immediate possession thereof may be taken to the extent of the interest to be acquired and the lands may be occupied and used for military purposes . . ." (Emphasis added.)
"The circuit courts of appeal shall have appellate jurisdiction to review by appeal final decisions —
"First. In the district courts, in all cases save where a direct review of the decision may be had in the Supreme Court under section 345 of this title."
The amendment added a new paragraph to the petition stating the lands were being taken for purposes described in the language of the statute and incorporated in the petition the letter of the Secretary of War requesting the Attorney General to institute the proceedings to acquire the land "for use in the establishment of the Granite City Engineer Branch Depot." This is the specific purpose which petitioners say does not come within any set forth in the statute, for which see note 1.
Under the comparable provision of the 1929 act applicable in the District of Columbia, where special appeal may be allowed upon interlocutory orders, D.C. Code (1940) § 17-101, compare Lee v. United States, 58 F.2d 879, with Keyes v. United States, 119 F.2d 444.
"An Act To expedite the construction of public buildings and works outside of the District of Columbia by enabling possession and title of sites to be taken in advance of final judgment in proceedings for the acquisition thereof under the power of eminent domain.
"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in any proceeding in any court of the United States outside of the District of Columbia which has been or may be instituted by and in the name of and under the authority of the United States for the acquisition of any land or easement or right of way in land for the public use, the petitioner may file in the cause, with the petition or at any time before judgment, a declaration of taking signed by the authority empowered by law to acquire the lands described in the petition, declaring that said lands are thereby taken for the use of the United States. Said declaration of taking shall contain or have annexed thereto —
"(1) A statement of the authority under which and the public use for which said lands are taken.
"(2) A description of the lands taken sufficient for the identification thereof.
"(3) A statement of the estate or interest in said lands taken for said public use.
"(4) A plan showing the lands taken.
"(5) A statement of the sum of money estimated by said acquiring authority to be just compensation for the land taken.
"Upon the filing said declaration of taking and of the deposit in the court, to the use of the persons entitled thereto, of the amount of the estimated compensation stated in said declaration, title to the said lands in fee simple absolute, or such less estate or interest therein as is specified in said declaration, shall vest in the United States of America, and said lands shall be deemed to be condemned and taken for the use of the United States, and the right to just compensation for the same shall vest in the persons entitled thereto; and said compensation shall be ascertained and awarded in said proceeding and established by judgment therein, and the said judgment shall include, as part of the just compensation awarded, interest at the rate of 6 per centum per annum on the amount finally awarded as the value of the property as of the date of taking, from said date to the date of payment; but interest shall not be allowed on so much thereof as shall have been paid into the court. No sum so paid into the court shall be charged with commissions or poundage.
"Upon the application of the parties in interest, the court may order that the money deposited in the court, or any part thereof, be paid forthwith for or on account of the just compensation to be awarded in said proceeding. If the compensation finally awarded in respect of said lands, or any parcel thereof, shall exceed the amount of the money so received by any person entitled, the court shall enter judgment against the United States for the amount of the deficiency." (Emphasis added.)
"Upon the filing of a declaration of taking, the court shall have power to fix the time within which and the terms upon which the parties in possession shall be required to surrender possession to the petitioner. The court shall have power to make such orders in respect of encumbrances, liens, rents, taxes, assessments, insurance, and other charges, if any, as shall be just and equitable."
"In any case in which the United States has taken or may take possession of any real property during the course of condemnation proceedings and in advance of final judgment therein and the United States has become irrevocably committed to pay the amount ultimately to be awarded as compensation, it shall be lawful to expend moneys duly appropriated for that purpose in demolishing existing structures on said land and in erecting public buildings or public works thereon, notwithstanding the provisions of section 355 of the Revised Statutes of the United States: Provided, That in the opinion of the Attorney General, the title has been vested in the United States or all persons having an interest therein have been made parties to such proceeding and will be bound by the final judgment therein."
"Action under this statute irrevocably committing the United States to the payment of the ultimate award shall not be taken unless the chief of the executive department or agency or bureau of the Government empowered to acquire the land shall be of the opinion that the ultimate award probably will be within any limits prescribed by Congress on the price to be paid."