49th Congress, SENATE Mis. Doc.
2d Session. No. 83.
LETTER
FROM
GEORGE W. HOUK AND OTHERS,
ATTORNEYS FOR NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS, DAYTON, OHIO,
Protesting against including in the appropriation bill amount of verdicts against the Soldiers’ Home.
February 25, 1887.--Referred to the Committee on Appropriations and ordered to be printed.
Dayton, Ohio, February 22, 1887.
Dear Sir: At the present term of the United States circuit court at Cincinnati, verdicts amounting to $4,700, in the aggregate, have been rendered against the National Home for Disabled Volunteer Soldiers, located near this city. These verdicts were rendered in the cases brought by owners of property adjacent to the Home for an alleged nuisance caused by the Home authorities flowing sewage through a small branch, or creek, which runs through the plaintiff’s farms. The undersigned were attorneys for the Home in those cases. We made the objection, on demurrers to plaintiffs’ petitions, and by our answers, that the Home is an arm of the Government, that all its property is the property of the Government, that all moneys in the hands of the Board of Managers are appropriated by Congress for certain specific purposes and cannot be applied to any other purpose, and we claim therefore that an action of tort would not lie against the Home, and that the plaintiffs’ remedy was by an application to Congress for relief. The court after long deliberation overruled the demurrers, but at the same time held that as the Home property is devoted to a public use no execution could be levied on it, and that the court was powerless to execute its judgement when rendered, but the court said the judgement would lay the foundation for an appeal to Congress, and would be similar in effect to a judgement rendered by the Court of Claims.
The cases then went to a jury. Plaintiffs’ attorneys made the most of the fact that the judgements were to be paid out of the United States Treasury, which was filled to overflowing, and they obtained what we consider very exorbitant and unreasonable verdicts against the Home. We proved by our testimony that the Home authorities, at great expense, had remedied the principal cause of complaint years ago, and that the only injury sustained by the plaintiffs was caused by the waste water used in the manufacture of gas, and soapsuds from the laundry and bath-houses being then allowed to flow into the creek. The plaintiffs made no claim for damages to the Board of Managers of the Home, but brought their actions at once in our State court here, whence we had them removed to the circuit court of the United States. Mr. John A. McMahon, one of the attorneys for the plaintiffs, has made such representations to members of the House of Representatives that there is a probability that the amount of those judgments will be included in one of the appropriation bills to be passed at the present session. Motions for new trials in those cases were argued last Saturday, and we are not yet advised of the determination of the court.
We submit that Congress is in no way bound by the judgment of the court, and should either through a committee of its members or through the Board of Managers of the Home, investigate the matter before making an appropriation. Also, that by recognizing these judgments Congress will in effect invest the circuit courts with a jurisdiction which has been conferred by law only upon the Court of Claims. There are a number of other property-owners who have similar claims against the Home, and if this appropriation is made they will be encouraged to bring similar suits in the courts instead of applying directly to Congress or to the Board of Managers for relief, and will thereby entail upon the Government a heavy bill of costs and legal expenses, which should be avoided. The verdicts being for less than $5,000, we are precluded from taking the legal questions involved to a higher court for determination. The nuisance complained of has been entirely abated by the Home authorities at an expense of from $25,000 to $30,000. We respectfully ask that you give this matter attention, when the appropriation bills reach the Senate, as we think a refusal on the part of Congress to make the appropriation at this time would enable the Home authorities to make a reasonable and just compromise with all parties concerned.
Yours, very truly,
Geo. W. Houk.
Young & Young.
D. B. Corwin.
Hon. John Sherman,
Washington, D. C.
