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COMMISSIONERS OF THE DISTRICT OF COLUMBIA,

Washington December 10, 1931. Hon. ARTHUR CAPPER, Chairman Committee on the District of Columbia,

United States Senate, Washington, D. C. Sir: The Commissioners of the District of Columbia have the honor to inclose herewith draft of a bill entitled “A bill to authorize the assessor of the District of Columbia to testify in condemnation proceedings,” and to request its introduction and enactment.

In the exercise of the power of eminent domain it is essential for the District of Columbia to have available, for the purpose of testifying as to values of land sought to be condemned, competent real-estate experts. In the majority of condemnation cases the District secures the services of two expert witnesses, but there are cases where three are required. Frequently in past years the assessor of the District has been called upon to testify and in every instance he was qualified as a real-estate expert and presented to condemnation jurors opinion evidence as to values.

In the case of Johnson & Wimsatt (Inc.) v. Luther H. Reichelderfer, Herbert B. Crosby, and John C. Gotwals, the Commissioners of the District of Columbia, the Court of Appeals of the District of Columbia considered the competency of the assessor as a witness in these condemnation cases, and after referring to the long-recognized doctrine and the usual instructions based thereon, that condemnation jurors are to give no consideration to tax assessments, stated as follows:

"The foregoing instructions, or the substance thereof, has long been used in such cases in this jurisdiction, as in many others, and while the assessor's testimony may differ from the assessor's assessments, it seems wholly impracticable to preserve the landowner's fundamental right of cross-examining him as a witness without violating the instruction of the judge to the jury.

“For if his testimony agrees with the assessment, then the jury is indirectly considering the assessment, and becoming informed in respect of the assessment.

“While if his testimony differs from the assessment, the difference can not be brought out on cross-examination without considering the assessment, and without informing the jury in respect to the assessment.

"In view of the widespread and growing distrust of expert witnesses in our courts, we can not view with approval the practice of calling a salaried officer of the District of Columbia to give opinion evidence in a cause where the district is a party litigant, and especially where the assessor of taxes testifies to a jury made up exclusively of the payers of taxes.

“For these reasons we are of opinion that it was error to receive the assessor's testimony in this case, though, of course, we do not mean to intimate any criticism of the assessor, whom we have long recognized as an industrious and efficient public servant.

It would appear that there is hardly anyone in a better position to know the actual value of real estate in the District of Columbia than the tax assessor, who is constantly dealing with real estate throughout the entire District and who is also ex officio chairman of the Board of Equalization and Review, consisting of the assessor and the six assistant assessors. (District of Columbia Code, title 20, secs. 694-702.)

It is widely recognized that appraisements by tax assessors for purposes of taxation are not admissible in evidence in condemnation proceedings, but, when the assessor is called upon to testify, his testimony is not based on tax assessments. He is called upon to give opinion evidence as to values regardless of tax assessments and as a real-estate expert. The fees of expert witnesses are fixed by the court, and although every effort is made to keep them within bounds they nevertheless add materially to our judicial expenses. The use of the tax assessor as a witness may result in the saving of quite a substantial amount in witness fees. Very truly yours,

L. H. REICHELDERFER, President Board of Commissioners of the District of Columbia.

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JANUARY 7 (calendar day, JANUARY 9), 1932.-Ordered to be printed

Mr. HOWELL, from the Committee on Claims, submitted the following

REPORT

[To accompany S. J. Res. 56)

The Committee on Claims, to whom was referred Senate Joint Resolution (S. J. Res. 25) having considered the same, report favorably thereon with the recommendation that the resolution do pass without amendment.

The facts are fully set forth in Senate Report No. 1594, Seventyfirst Congress, third session, which is appended hereto and made a part of this report.

(Senate Report No. 1594, Seventy-first Congress, third session)

The Committee on Claims, to whom was referred the resolution (S. J. Res. 119) authorizing the Comptroller General of the United States to consider, adjust, and settle the claim of the Indiana State Militia for military service on the Mexican border, having considered the same, report favorably thereon with the recommendation that the resolution do pass without amendment.

The purpose of the resolution is to authorize and direct the Comptroller General of the United States to consider, adjust, and settle the claim of the State of Indiana for mobilization expenses, subsistence, transportation, and supplies made to and for the use of the Indiana State Militia in the period of mobilization for Federal military service on the Mexican border under the call of the President of the United States of June 18, 1916, notwithstanding the disallowance of the claim by the Auditor for the War Department on August 19, 1918, because there was no law authorizing the reimbursement of any State for any expense incurred in mobilization of any militia under the call of the President, June 18, 1916.

The resolution has the favorable recommendation of the War Department, and the Comptroller General.

The facts are fully set forth in the following correspondence, which is appended hereto and made a part of this report:

WAR DEPARTMENT,

Washington, February 13, 1930. Hon. R. B. HOWELL,

Chairman Committee on Claims, United States Senate. DEAR SENATOR HOWELL: Careful consideration has been given to S. J. Res. 119, authorizing the Comptroller General to settle the claim of the Indiana State Militia for service on the Mexican border, which you forwarded to the War Department under date of January 15, 1930, with request for pertinent papers on the subject and for an opinion as to the merits of the resolution.

The claim of the State of Indiana in the sum of $20,584.75 for supplies furnished and expenditures incurred in connection with the mobilization of the Indiana National Guard for Mexican border service in 1916, pursuant to the call of the President of June 18, 1916, was submitted to the Auditor for the War Department and was disallowed by him on August 19, 1918, on the ground that there was no law authorizing reimbursement of the State for expenditures incurred in connection with said mobilization.

The records of the department show that the claim in question was made up of the following items: Shoes...

$14, 242. 62 Subsistence.

1, 140. 95 Transportation.

1, 824. 30 Mobilization.

3, 050. 65

326. 23

Final pay

Total

20, 584. 75 The documentary evidence supporting the claim, i. e., statements, receipts, and so forth, are now on file in the General Accounting Office.

If this claim has not been settled it is the opinion of the department that it should be settled. However, there appears to be a question as to whether it has not already been settled in connection with the claims of Indiana for Stateowned property brought into Federal service by its National Guard when called into Federal service in 1917 for service in the World War. By letter dated October 10, 1925, the Adjutant General of Indiana requested the return of all papers relative to this claim. By third indorsement the General Accounting Office, claims division, January 7, 1926, to the Chief of Finance, it was stated as follows:

“It appears that the papers in question constitute a part of the records of this office in connection with certificate of settlement No. 93936 dated December 2, 1920, issued in favor of the State of Indiana in the amount of $34,303.34, and certificate of settlement No. 115524 dated July 9, 1921, in favor of the State of Indiana in the amount of $35,567.86.

“Since these papers were considered in connection with the above-mentioned settlements they are now a part of the permanent records of this office and can not be returned to the State."

In view of the above statement by the General Accounting Office it is believed that S. J. Res. 119 should be referred to that office by your committee.

In connection with this claim it should be stated that two of the States brought suit in the Court of Claims for reimbursement for expenditures incurred in connection with the 1916 National Guard mobilization for Mexican border service, and in each case the court held that the claimant was entitled to recovery, viz: State of New York v. The United States (61 Court of Claims, 737); Commonwealth of Massachusetts v. The United States (64 Court of Claims, 337).

In neither of these cases was there special legislation conferring upon the Court of Claims jurisdiction to pass upon the claim.

The War Department made a report on a similar resolution under date of March 7, 1928, to the chairman Committee on Military Affairs, United States Senate. A copy of that report is inclosed herewith for the information of your committee. Sincerely yours,

PATRICK J. HURLEY,

Secretary of War.

WAR DEPARTMENT,

Washington, March 7, 1928.
Hon. David A. REED,
Chairman Committee on Military Affairs,

United States Senate. DEAR SENATOR REED: Please refer to my letter to you of January 18, 1928, relative to Senate Joint Resolution 39.

At the time this letter was written the information in the possession of the War Department was to the effect that the claim of the State of Indiana for reimbursement for money expended during the mobilization of its National Guard under the call of June 18, 1916, for Mexican border service, had been allowed by the Comptroller General and had been certified to the Congress for an

appropriation. A copy of a letter from the Comptroller General to the Chief of Finance dated December 11, 1925, which prompted this statement is inclosed herewith.

However, I am just in receipt of a letter from Senator Watson, the author of Senate Joint Resolution 39, inclosing a letter from Gen. William H. Kershner, the adjutant general of Indiana, which explains the purpose of Senate Joint Resolution 39. I inclose herewith a copy of General Kershner's letter, and also a copy of my reply to Senator Watson.

It now appears that the claim of the State of Indiana which was allowed by the General Accounting Office was for reimbursement for State-owned property brought into Federal service by its National Guard in August, 1917, and that this claim has been fully settled.

It further appears that Indiana's claim for reimbursement for money expended during the mobilization of its National Guard under the call of June 18, 1916, for Mexican-border service, was disallowed by the Auditor for the War Department.

The adjutant general of Indiana states that the Auditor for the War Department made an error in one of the certificates of settlement pertaining to the 1917 claim by confusing it with the 1916 claim. The War Department has no information relative to this alleged error.

It is apparent that the purpose of S. J. Res. 39 is to authorize the Comptroller General to reopen, reconsider, adjust, and settle a claim of the State of Indiana which he is now without authority to consider, due to the fact that it was acted upon by his predecessor in office. I can see no objection to this method of procedure. However, I suggest that the views of the Comptroller General relative to the resolution in question be obtained.

This supplemental report on S. J. Res. 39 has been submitted to the Director of the Bureau of the Budget, who advises that the proposed resolution is not in conflict with the financial program of the President. Sincerely yours,

C. B. ROBBINS, Acting Secretary of War.

WASHINGTON, February 1, 1930. Hon. R. B. HOWELL,

Chairman Committee on Claims, United States Senate. MY DEAR MR. CHAIRMAN: I have the honor to comply with your request for & report on S. J. Res. 119, Seventy-first Congress, pending before your committee; which authorizes and directs this office “* to consider, adjust, and settle the claim of the State of Indiana for mobilization expenses, subsistence, transportation, and supplies made to and for the use of the Indiana State Militia in the period of mobilization for Federal military service on the Mexican border under the call of the President of the United States of June 18, 1916, notwithstanding the disallowance of the claim by the Auditor for the War Department on August 19, 1918, because there was no law authorizing the reimbursement of any State for any expenses incurred in mobilization of any militia under the call of the President, June 18, 1916."

The Indiana Mexican border claim for mobilization expenses of Indiana State
Militia amounted to $20,584.75, itemized as follows:
Mobilization

$3, 050. 65 Subsistence

1, 140. 95 Transportation.

1, 824. 30 Shoes...

14, 242. 62

326. 23 was disallowed by the Auditor for the War Department for reasons as follows:

“The claim of the State of Indiana for money expended during the period of the mobilization of the National Guard under the call of the President, June 18, 1916, is not a valid claim against the United States for the reason that there is no law authorizing the reimbursement of any State by the United States for any expense incurred by it in the mobilization of the National Guard under the call of the President of June 18, 1916." (Certificate No. 5534442, August 19, 1918.)

It does not appear that any appeal to the Comptroller of the Treasury was taken therefrom by the State of Indiana.

Upon the matter as before me you are advised that no objection is offered to the resolution, and, should it be enacted, this office will assemble all available

Final pay

evidence in the matter, including such as the State may furnish in substantiation of its right to such $20,584.75 Mexican border National Guard mobilization expenses, or any part thereof, supplemented by such evidence as obtainable from the War Department as may have a bearing thereon, and, upon the whole matter as before it determine the amount, if any, that may be allowed to said State on said account. If I can be of further service in the matter I shall be pleased to be advised. Sincerely yours,

J. R. McCARL. Comptroller General of the United States.

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