intent of the parties, is equally clear. See Hirsch v. U.S., D.C.E.D.N.Y.1954, 120 F.Supp. 808 to the same effect. It might be added that in the same case, when later heard on the merits, the facts showed that the landlord did not have any present right to the property seized; hence he could not claim that the Government seized his property. Therefore, Hirsch has no bearing on the facts presented in this case. See opinion filed by Bruchausen, J., January 8, 1959.
Furthermore, there is an entirely separate and distinct ground, on which it would seem that the defendant Government was liable to the plaintiff landlord, a ground not argued by the parties, but which seems apparent on the face of the papers, the Tucker Act and the Constitution of the United States. The Fifth Amendment provides: '* * * nor shall private property be taken for public use without just compensation.' The Tucker Act, above quoted, also provides that '(a) the district courts shall have original jurisdiction concurrent with the Court of Claims, of: * * * (2) any other civil action or claim against the United States * * * founded * * * upon the Constitution * * *'
The complaint filed herein recites, as the basis of jurisdiction, the Tucker Act, and seeks judgment upon the above facts. This suffices to outline a cause of action either upon a contract implied in fact or upon the basis of the Constitution, Amendment 5, itself. As the Court said in United States v. Dickinson, 1946, 331 U.S. 745, 748, 67 S. Ct. 1382, 1384, 91 L. Ed. 1789:
'* * * These suits against the Government are authorized by the Tucker Act either as claims 'founded upon the Constitution of the United States' or as arising upon implied contracts with the Government. (See the discussion of jurisdiction both in the opinion of the Court and in the concurring opinion in United States v. Lynah, 188 U.S. 445, 23 S. Ct. 349, 47 L. Ed. 539, and in Tempel v. United States, 248 U.S. 121, 39 S. Ct. 56, 63 L. Ed. 162.) But whether the theory of these suits be that there was a taking under the Fifth Amendment, and that therefore the Tucker Act may be invoked because it is a claim founded upon the Constitution, or that there was an implied promise by the Government to pay for it, is immaterial. In either event, the claim traces back to the prohibition of the Fifth Amendment, 'nor shall private property be taken for public use, without just compensation.' The Constitution is 'intended to preserve practical and substantial rights, not to maintain theories.' Davis v. Mills, 194 U.S. 451, 457, 24 S. Ct. 692, 695, 48 L. Ed. 1067.'
This, and the underlying cases, cited by our highest Court, show clearly that where there is a taking of property, not by condemnation but by other governmental action, the property owner may recover just compensation, the specific means to do so being by an action under the Tucker Act in either this Court or the Court of Claims.
That the action of the Internal Revenue levying officers, in placing a lock upon the premises of the landlord where the taxpayer's property lay, was an actual taking of the landlord's property is clear, particularly when we bear in mind the fact that at the time of this levy the officers tacked upon the premises a sign reading: 'Warning -- United States Government Seizure -- This property seized for nonpayment of Internal Revenue taxes by virtue of a levy issued by the District Director of Internal Revenue * * *' This sign, it should be noted, did not list the property levied on, and was not affixed to the property levied on, but was affixed to the premises of the landlord, and thus to the world denoted a seizure of the landlord's premises.
Both because there was a contract implied in fact between the parties hereto, to pay for the premises used for the storage of the taxpayer's property levied on, and because there was a taking of plaintiff's property without just compensation, the defendant Government is liable to pay therefor. As to the quantum of such payment, and the effect thereon of the lock placed upon the premises by the taxpayer's receiver in bankruptcy, on top of the locks placed thereon first by the landlord and thereafter by the Government, counsel have agreed that these issues are to be determined subsequent to this determination of liability, as above.
The facts herein stated and the conclusions of law herein expressed shall be considered the findings of fact and conclusions of law required by F.R.Civ.P. 52, 28 U.S.C.A.
An order may be entered accordingly.