herein involved for the uses described in the complaint, and that the plaintiff is proceeding properly in this litigation.
The National Capital Park and Planning Commission Act of 1924, (43 Stat. 463) as amended, 40 U.S.C.A. § 71 et seq., gives the Commission the power to condemn the property involved herein for the purpose set forth in the Complaint. Title 16, § 619 of the District of Columbia Code also relied upon by plaintiff states as follows:
'Whenever the head of any executive department or independent bureau, or other officer of the United States, or any board or commission of the United States, hereinafter referred to as the acquiring authority, has been, or hereafter shall be, authorized by law to acquire real property in the District of Columbia for the construction of any public building or work, or for parks, parkways, public playgrounds, or any other public purpose, such acquiring authority shall be and hereby is, authorized to acquire the same in the name of the United States by condemnation under judicial process whenever in the opinion of such acquiring authority it is necessary or advantageous so to do; and in every such case the Attorney General of the United States, upon the request of such acquiring authority, shall cause a proceeding in rem for such condemnation to be instituted in the District Court of the United States for the District of Columbia, holding a special term as a District Court of the United States, which court is hereby vested with jurisdiction of all such cases of condemnation with full power to hear and determine all issues of law and fact that may arise in the same.'
The Court finds that the plaintiff is proceeding legally and properly and pursuant to Title 16, §§ 619-644 of the District of Columbia Code.
However, the defendant argues that the language of 40 U.S.C. § 72, authorizing condemnation for park, parkway and playground uses by the Commission specifically requires it to follow the procedures set forth in the Act of August 30, 1890, 26 Stat. 412 (formerly 40 U.S.C. § 120), which does not authorize a declaration of taking by the Commission. This contention might be correct if it could be held that the 1890 statute were operative today. However, it is not. The tables in the official edition of the U.S.Code, 1952 Edition, at page 8131, reveal that this statute has been eliminated from the Code as being obsolete and superseded. Why this was done may be understood by referring to Willis v. United States, 1938, 69 App.D.C. 129, 99 F.2d 362. The late Justice Vinson there traced the history of condemnation procedure in the District of Columbia. At page 130 of 69 App.D.C., at page 363 of 99 F.2d, it is stated:
'The statutes relative to the condemnation of land in the District of Columbia are evolutions of several prior acts of Congress. Until 1929, the same procedure was provided for both the United States and the District of Columbia * * * The Act of August 30, 1890, 26 Stat. 412, 413, § 3, 40 U.S.C.A. § 120, set out the procedure for the taking by condemnation of private property in the District of Columbia * * *. On March 1, 1929, Congress changed the method or procedure in condemnation cases in the District of Columbia. Different methods were provided for the United States (45 Stat. 1415, c. 416 (now D.C.Code, Title 16, §§ 619-644)) and for the District of Columbia (45 Stat. 1437, c. 439 (now D.C.Code, Title 16, §§ 601-604)).'
Thus it is clear that D.C.Code, 16-619 et seq., is the controlling statute here and the plaintiff has conformed to its provisions.
The Court also finds that the Commission has monies available to compensate defendant for its property. At the present time there is on deposit in the registry of this court the sum of $ 128,250 which is the amount of money estimated by the Commission to be just compensation for the property taken. Undoubtedly this money was intended by Congress for the purchase of the land involved, which is to be used for the purpose stated by the Government.
Defendants also resist the plaintiff's motion for summary judgment by asserting in both of its memoranda of points and authorities that certain genuine issues of material fact exist in this litigation. The fact issues claimed to exist are not properly set forth in the answer or by means of affidavit but are merely listed at page 7 of both of defendant's memoranda. Furthermore, this list does not consist of specific allegations or statements of fact but rather they are merely speculative questions as to what procedures might or might not have been followed by the Commission in instituting this action. By reason of their source and their nature, these questions do not form a sound basis for determining that a genuine issue of material fact exists in this case. Even factual statements made in legal memoranda or points and authorities cannot be given the dignity of allegations in the pleadings or statements made by affidavit or by deposition. Goldman v. Summerfield, 1954, 94 U.S.App.D.C. 209, 214 F.2d 858. In addition, as Judge Fahy stated in Dewey v. Clark, 1950, 86 U.S.App.D.C. 137, at page 143, 180 F.2d 766, at page 772:
'* * * There may be no genuine issue even though there is a formal issue. Neither a purely formal denial nor, in every case, general allegations, defeat summary judgment * * * formalism is not a substitute for the necessity of a real or genuine issue.'
Thus, from a consideration of the pleadings, it would appear that there are no material issues of fact here.
The objections and defenses set forth in defendants' answer do not constitute valid and legal defenses to the taking of its property or to the delivery of possession of the property involved herein to plaintiff and fails to set forth a valid claim upon which the relief sought by defendant can be granted. There is no genuine issue as to any material fact and the plaintiff is entitled to a judgment as a matter of law. Motion for summary judgment is granted.
Counsel for plaintiff will prepare an appropriate order in accordance with this opinion.
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