'small business,' as that term is used in the statute and regulations. He also held that Veterans fulfilled all the requirements and that Chilkoot Barracks should be transferred to Veternas. An appeal to Mr. Secretary Krug was dismissed on October 3, 1946, and on October 12, 1946, the War Assets Administrator denied an appeal. On October 29, 1946, Assistant Secretary Gardner issued an opinion on reconsideration, adhering to the position he stated in his original opinion.
On November 4, 1946, the plaintiff filed a complaint in this court asking for the relief indicated above. On the same day he requested a temporary restraining order to prevent the defendants Littlejohn, Krug, Gardner, and Johnson from conveying the property to the defendants Homer and Veterans. Although none of the defendants had been served, and no service has yet been made, they had been notified that the application for a restraining order was to be made and they appeared at the hearing. The order was granted on condition that the plaintiff post security of $ 10,000. The security has been posted.
The parties have agreed that the motion on behalf of the defendants Littlejohn, Krug, Gardner, and Johnson for a dismissal of the suit for lack of jurisdiction or for summary judgment, would be heard at the same time as plaintiff's motion for a temporary injunction.
This suit cannot be maintained. To grant the relief sought would require an order for the transfer of properties, the entire title and interest in which is in the United States. The immunity of the sovereign has not been waived. The suit is in effect and in reality one against the United States, since any judgment rendered would necessarily be one against the United States. Minnesota v. Hitchcock, 185 U.S. 373, 22 S. Ct. 650, 46 L. Ed. 954; Louisiana v. Mcadoo, 234 U.S. 627, 34 S. Ct. 938, 58 L. Ed. 1506; Goldberg v. Daniels, 231 U.S. 218, 34 S. Ct. 84, 58 L. Ed. 191.
The court is powerless to restrain the United States from transferring its properties to Homer or Veterans and may not compel the transfer of the properties to plaintiff. The court cannot issue either of the requested mandates. To do so would require a judgment against the United States, which the court is without jurisdiction to enter. The United States is an indispensable party to any suit where it is sought to establish or acquire an interest in lands which it owns. Minnesota v. United States, 305 U.S. 382, 59 S. Ct. 292, 83 L. Ed. 235. In Minnesota v. Hitchcock, supra, the Supreme Court considered the precise jurisdictional question which is present in the suit at bar. It was sought to prevent the Secretary of the Interior from selling certain lands to which the State laid claim and to establish the right of the State to the land. The court held that such an action was necessarily a suit against the United States. At page 387 of 185 U.S., at page 655 of 22 S. Ct. it was said:
'Now, the legal title to these lands is in the United States. The officers named as defendants have no interest in the lands or the proceeds thereof. The United States is proposing to sell them. This suit seeks to restrain the United States from such sale, to divest the government of its title and to vest it in the state. The United States is therefore the real party affected by the judgment and against which in fact it will operate, and the officers have no pecuniary interest in the matter.'
An examination of the opinion in Goldberg v. Daniels, supra, is enlightening and persuasive. The doctrine of that case has been accepted by the Court of Appeals for the District of Columbia, and has been consistently followed by that court. International Trading Corp. v. Edison, 71 App.D.C. 210, 109 F.2d 825; Haskins Bros. & Co. v. Morgenthaus, 66 App.D.C. 178, 85 F.2d 677; Farley v. Albus, 72 App.D.C. 136, 112 F.2d 401.
Turning then to another aspect of the case it is noticed that the statute does not define the term 'small business'; such failure was not inadvertent. The legislative history clearly shows that the definition of such term was left to the disposal agency. It was left to the sound judgment and wise discretion of persons charged with the administration of the law to give the term 'small business' its proper and appropriate meaning, having in mind what Congress sought to do to protect independent private enterprise. It was not enough that plaintiff's name was drawn. It was essential that he should qualify in other respects. The evidence strongly supports the findings announced by Assistant Secretary Gardner. He found that O'Harra, prior to incorporation, had a capitalization of $ 200,000, to be increased to $ 450,000 on the sale of the stock; that his gross income for recent years was about $ 200,000 per year; that he was employing 58 employees, and would employ approximately 110, should he be successful in securing the Chilkoot Barracks Project; that he owns about 36 busses; that he owns bus depots in six cities, and garages in four; that he owns two apartment houses; that the facilities owned by him at Gulkana included 18 buildings, at White River, 20 buildings; that except for very short runs, he was little competition in Alaska; that he owns three times as many busses as all of those of his competitors combined.
It is clear that Assistant Secretary Gardner had in mind the declared objectives of the statute. The evidence is voluminous. Extensive hearings were had. It was found that O'Harra enterprise failed to qualify as a 'small business'. It is clear that plaintiff dominates bus transportation in Alaska, and that, for Alaska, his enterprise is a large business. The type of criteria which Assistant Secretary Gardner tried was clearly the type which Congress considered important to achieve the objectives of the statute.
The Assistant Secretary was on firm ground in holding that Veterans have qualified for priority in their bid for the properties; the evidence reveals that there is sound basis for such conclusion. He found that Veterans was a corporation, the membership of which was composed of some 40 veterans or representatives of veterans; that its proposed capitalization is about $ 350,000; that the Veterans will function as an administrative body; that the members of Veterans will own and operate their own mercantile, industrial and professional enterprises, which will be aided by Veterans' financing. He found that Veterans does not and will not in the foreseeable future be dominant in any field of business in Alaska. Further, a grant of the property to Veterans will effectuate the policies specifically expressed by the statute. It will strengthen and preserve the competitive position of small business concerns; it will afford returning veterans an opportunity to establish themselves as proprietors of agricultural business, and professional enterprises; it will effect an equitable distribution of surplus property; and it will foster the development of new independent enterprises.
The matter of determining the eligibility of plaintiff and of Veterans was within the sound discretion of the disposal agency. The record shows such discretion was exercised with much care. It cannot be said that there was an abuse of discretion or that the denial of plaintiff's eligibility and the affirmance of Veterans' eligibility was in any wise arbitrary or capricious. The exercise of discretion was reasonable in the facts and circumstances of the case.
It follows that the motion of plaintiff for a temporary injunction must be overruled and the motion of defendants to dismiss the complaint should be sustained.
Counsel for defendants will present an appropriate order consistent herewith.
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