and workable, the Department of Justice, on the other hand, advised that their experience with both the jury system and the commissioner system in condemnation cases indicates a preponderance of advantages in the use of the jury system. While the committee makes no judgment as to the benefits of either the commissioner or jury trial systems, it does believe that a right to trial by jury is basic to our American way of life, and accordingly has amended H.R. 4846 so as to make rule 71(A) (h) of the Federal Rules of Civil Procedure applicable to condemnation proceedings initiated under the Tennessee Valley Authority program. The principle of this rule provides that assessment of value and determination of compensation will be made by a jury unless the U.S. district court judge involved determines, in his discretion, that the ends of justice would better be served by determination on a commission basis instead of on a jury basis. However, the committee wishes to declare emphatically that it is not intended that the district court judges because of the discretionary element in the granting of jury trials, automatically, regularly, and consistently deprive landowners of the right of trial by jury, but rather that it is the clear purpose and intent of Congress to provide for a jury trial on demand except in cases where justice would be better served by a commission determination, or where the parties indicate that it is their mutual choice to utilize the commissioner system. Hon. GEORGE H. FALLON, AGENCY VIEWS TENNESSEE VALLEY AUTHORITY, Chairman, Committee on Public Works. House of Representatives, Washington, D.C. DEAR MR. FALLON: This is in response to your request for our views on H.R. 4846, a bill to amend the Tennessee Valley Authority Act of 1933 to provide that the issue of just compensation may be tried by a jury in any case involving the condemnation of real property by the Tennessee Valley Authority. Section 25 of the TVA Act provides for the determination of the issue of just compensation by three commissioners who "shall not be selected from the locality in which the land sought to be condemned lies," and "who shall be disinterested persons and who shall take and subscribe an oath that they do not own any lands, or interest or easement in any lands, which it may be desirable for the United States to acquire in the furtherance of said project." Appeals may be taken from the award of the commission to a three-judge Federal court, but by agreement of the parties the three-judge court is usually waived and the appeals are heard by a single Federal judge. The statute provides for a further appeal to the court of appeals. H.R. 4846 would abolish this procedure and permit a party to have the issue of just comensation tried by a jury by simply filing a demand for a jury. We believe that the enactment of this bill would not be in the public interest and we strongly urge that it not be reported favorably. We believe that experience with the existing procedure has demonstrated that it is particularly well adapted to condemnation by an agency such as TVA which is engaged in a comprehensive program for the development of the resources of a region which requires substantial acquisitions of land and land rights. Most of the courts which handle TVA cases appoint standing commissions to hear all TVA cases arising in that court. The courts have uniformly appointed an attorney to serve as chairman and the other two members are usually men with knowledge of real estate values, often a realtor or a farmer experienced in land transactions. Thus, the commissioners are generally better qualified than most jurors would be to evaluate evidence of sales and land values. This is especially important in condemnation cases where the evidence as to compensation consists chiefly of opinion testimony. Moreover, since the commissioners view the land and other properties which have sold recently, something which juries rarely if ever do, they are in a far better position to understand and evaluate the testimony. Since the same commission tries all of the cases in an area, its awards tend to be consistent. This means that landowners obtain a price which is not only fair in terms of the value of their property but also consistent with the awards received by their neighbors. Where cases are tried by different juries, verdicts can vary widely. In fact, substantial variance can occur in verdicts of the same jury since jurors ordinarily have no opportunity to view the property condemned or to compare one tract with another. Inequality of awards can be productive of widespread discontent and can seriously hamper a regional agency in carrying out its responsibilities. The commission system also reduces the amount of litigation. The amount of a jury verdict is always a gamble and the possibility of the landowner's receiving a large award, no matter how remote, can generate a great deal of marginal litigation at great expense to all concerned. Commissions tend to be generous to the landowner but our experience over many years has shown that commission awards, while never unfairly low, are seldom unconscionably high. The incentive to litigate therefore is greatly reduced. The commission procedure is much more convenient for the landowner as well as for the Government. Since the cases are not on the jury docket, they can be tried at times and places to suit the convenience of the parties. This makes it possible to have prompt trials at places convenient to the landowner's residence. In addition, the courts benefit by not having their already crowded trial dockets further congested by TVA condemnations. At the present time TVA has over 200 condemnation cases pending in the Federal courts. If these cases were added to existing trial dockets, the workload of the district judges would be greatly increased and the delays encountere in disposing of cases would be multiplied many times. The question of whether TVA cases should be tried by a commission or by a jury was considered thoroughly by the Supreme Court Advisory Committee and the Supreme Court itself in connection with the promulgation of rule 71A of the Federal Rules of Civil Procedure. The Advisory Committee made an extensive study of the experience under the TVA statute and, as part of this study, it wrote to every Federal judge who had had experience with the TVA procedure, ask ing his view as to whether a jury system would be preferable. Of the 21 judges who replied, 17 expressed a preference for the commission system, while only three expressed a preference for the jury system. One judge failed to comment on this question. This study persuaded both the Advisory Committee and the Supreme Court that the TVA statutory procedure should be retained and that a similar procedure should be made available for other large governmental projects. This is the reason rule 71A (h) retains the existing procedure in TVA condemnation cases and permits the Court in its discretion to require that the issue of just compensation be determined by a three-man commission in other cases. A copy of the portion of the March 1951 report of the Advisory Committee which discusses the question is attached. We believe that the reason which persuaded the Supreme Court Advisory Committee and the Supreme Court in 1951 to retain the commission system are equally valid today. The commission procedure established by the TVA Act has served the ends of justice well for over 30 years. It has proved fair and workable and we believe it should be continued. The Bureau of the Budget advises that it has no objection to the presentation of this report from this standpoint of the administration's program. Sincerely yours, AUBREY J. WAGNER, Chairman. SUPPLEMENTARY REPORT OF THE ADVISORY COMMITTEE MARCH 1951. TO THE HONORABLE THE CHIEF JUSTICE AND THE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE UNITED STATES: In May 1948, the Advisory Committee submitted to the Court a report containing a proposed rule to govern condemnation cases. The Court kept that report under consideration until December 2, 1948, when it held an informal conference on the proposed rule, at which three members of the Advisory Committee were present by invitation. As a result of that conference, and on December 23, 1948, the Court returned the May, 1948, draft of the rule to the Advisory Committee "for further consideration." (See letter of December 23, 1948, from the Chief Justice to Chairman Mitchell.) Since then the Advisory Committee has given further consideration to the proposed rule, and at a meeting of the Committee held at Washington April 6, 1950, and thereafter it adopted a number of amendments to the 1948 draft and now presents the revised draft to the Court with the recommendation that it be adopted. In presenting this revision we have used the 1948 print (appended hereto) as a basis, in which we have noted the recent alterations in the 1948 draft as this will enable the Court at a glance to see what the alterations are.1 No change has been made in the notes contained in the May 1948 print. 1 See pages v, 1, 2, 4, 7, 9, 10, 13, 15 and 17 of the appended 1948 print where the changes now recommended appear in the text, newmatter being shown by italics and matter to be omitted being lined through. The Court will remember that at its conference on December 2, 1948, the discussion was confined to subdivision (h) of the rule (pp. 6-7 of the 1948 print, appended hereto), the particular question being whether the tribunal to award compensation should be a commission or a jury in cases where the Congress has not made specific provision on the subject. The Advisory Committee was agreed from the outset that a rule should not be promulgated which would overturn the decision of the Congress as to the kind of tribunal to fix compensation, provided that the system established by Congress was found to be working well. We found two instances where the Congress had specified the kind of tribunal to fix compensation. One case was the District of Columbia (U.S.C., Title 40, §§ 361-386) where a rather unique system exists under which the court is required in all cases to order the selection of a "jury" of five from among not less than twenty names drawn from "the special box provided by law." They must have the usual qualifications of jurors and in addition must be freeholders of the District and not in the service of the United States or the District. That system has been in effect for many years, and our inquiry revealed that it works well under the conditions prevailing in the District, and is satisfactory to the courts of the District, the legal profession and to property owners. The other instance is that of the Tennessee Valley Authority, where the act of Congress (U.S.C., Title 16, § 831x) provides that compensation is fixed by three disinterested commissioners appointed by the court, whose award goes before the District Court for confirmation or modification. The Advisory Committee made a thorough inquiry into the practical operation of the TVA commission system. We obtained from counsel for the TVA the results of their experience, which afforded convincing proof that the commission system is preferable under the conditions affecting TVA and that the jury system would not work satisfactorily. We then, under date of February 6, 1947, wrote every Federal judge who had ever sat in a TVA condemnation case, asking his views as to whether the commission system is satisfactory and whether a jury system should be preferred. Of 21 responses from the judges 17 approved the commission system and opposed the substitution of a jury system for the TVA. Many of the judges went further and opposed the use of juries in any condemnation case. Three of the judges preferred the jury system, and one dealt only with the TVA provision for a three judge district court. The Advisory Committee has not considered abolition of the three judge requirement of the TVA Act, because it seemed to raise a question of jurisdiction, which cannot be altered by rule. Nevertheless the Department of Justice continued its advocacy of the jury system for its asserted expedition and economy: and others favored a uniform procedure. In consequence of these divided counsels the Advisory Committee was itself divided, but in its May 1948 Report to the Court recommended the following rule as approved by a majority (pp. 6-7, printed report, appended hereto): (h) TRIAL. If the action involves the exercise of the power of eminent domain under the law of the United States, any tribunal specially constituted by an Act of Congress governing the case for the trial of the issue of just compensation shall be the tribunal for the determination of that issue; but if there is no such specially constituted tribunal any party may have a trial by jury of the issue of just compensation by filing a demand therefor within the time allowed for answer or within such further time as the court may fix. Trial of all issues shall otherwise be by the court. The effect of this was to preserve the existing systems in the District of Columbia and in TVA cases, but to provide for a jury to fix compensation in all other cases. Before the Court's conference of December 2, 1948, the Chief Justice informed the Committee that the Court was particularly interested in the views expressed by Judge John Paul, judge of the United States District Court for the Western District of Virginia, in a letter from him to the chairman of the Advisory Committee, dated February 13, 1947. Copies of all the letters from judges who had sat in TVA cases had been made available to the Court, and this letter from Judge Paul is one of them. Judge Paul strongly opposed jury trials and recommended the commission system in large projects like the TVA, and his views seemed to have impressed the Court and to have been the occasion for the conference. The reasons which convinced the Advisory Committee that the use of commissioners instead of juries is desirable in TVA cases were these: 1. The TVA condemns large areas of land of similar kind, involving many owners. Uniformity in awards is essential. The commission system tend to prevent discrimination and provide for uniformity in compensation. The jury system tends to lack of uniformity. Once a reasonable and uniform standard of values for the area has been settled by a commission, litigation ends and settlements result. 2. Where large areas are involved many small landowners reside at great distance from the place where a court sits. It is a great hardship on humble people to have to travel long distances to attend a jury trial. A commission may travel around and receive the evidence of the owner near his home. 3. It is impracticable to take juries long distances to view the premises. 4. If the cases are tried by juries the burden on the time of the courts is excessive. These considerations are the very ones Judge Paul stressed in his letter. He pointed out that they applied not only to the TVA but to other large governmental projects, such as flood control, hydroelectric power, reclamation, national forests, and others. So when the representatives of the Advisory Committee appeared at the Court's conference December 2, 1948, they found it difficult to justify the proposed provision in subdivision (h) of the rule that a jury should be used to fix compensation in all cases where Congress had not specified the tribunal. If our reasons for preserving the TVA system are sound, provision for a jury in similar projects of like magnitude seemed unsound. Aware of the apparent inconsistency between the acceptance of the TVA system and the provision for a jury in all other cases, the members of the Committee attending the conference of December 2, 1948, then suggested that in the other cases the choice of jury or commission be left to the discretion of the District Court, going back to a suggestion previously made by Committee members and reported at page 15 of the Preliminary Draft of June 1947. They called the attention of the Court to the fact that the entire Advisory Committee had |