defendant's Exhibit A, and (2) a purchase money mortgage.
1. The Side Agreement
It appears that contemporaneously with the deed of July 19, 1956 the United States, represented by the Administrator of General Services, and the Mesta Machine Company entered into an agreement which is the 'side agreement' referred to. This instrument recites the sale of the property. It recites that local taxes for the years 1954 and 1955 claimed by the government to be unlawfully assessed against the property are unpaid. It refers to this civil action commenced by the government which was then pending in this court. It refers to the conditions of the purchase offer between the parties whereby it was agreed that the government:
'* * * will continue prosecution of the litigation, and should a final judgment adverse to the Government be entered, assume liability for payment of such taxes, and for the taxes, if any, for the year 1956 apportioned as of the date of delivery of title.'
The parties recite further that in this agreement the parties 'desire * * * to set forth in a more definitive manner their respective rights and obligations under * * * Item 5 of the Purchase Offer.' The government then reiterates the understanding that it will continue the prosecution of this litigation '* * * for the purposes, among other things, of having said taxes declared illegal and void and of no effect and to cause the defendants in said proceeding to remove the properties from the tax rolls and to refrain from further assessing or levying taxes for the years 1954, 1955 and 1956 against said properties.' The contract then provides '* * * if a final judgment is entered adverse to the Seller, Seller will assume liability, as between the parties hereto, for the payment of taxes for the years 1954, 1955 and, subject to Buyer's fulfillment of its obligations provided by Section 2 hereof next following, 1956. * * *'
2. Purchase Money Mortgage
This is first referred to in the deed attached to the original complaint. The amount, however, is not stated, nor are the terms of payment, nor does the complaint or any amendments thereto indicate that the mortgage still exists. Neither does the complaint or any amendment thereto indicate whether the purchase money remains unpaid; and it may be added at this point that nowhere in the complaint or any amendment is any reference made to any interest in the property owned by the government except full title to the premises which, of course, ended with the sale of the property on July 19, 1956.
Thus we have a situation where it seems to this court that the government continues to press this litigation without any definitive allegations of its interest in the property. If the government has an interest in the property which is being jeopardized by the assessment of taxes, then it should say so and do so clearly. It does not do so and says it isn't necessary to amend the complaint. It seems to this court that from the facts presented and from the oral argument that the real reason the government is proceeding with the litigation is because it agreed with Mesta to carry on the lawsuit. If the latter is the present basis for the continuance of this lawsuit, the government should say so. It seems to this court that under the whole picture as presented here, this business of the assessments being a cloud upon the purchase money mortgage is an afterthought on the part of government counsel. This court takes judicial notice of the fact that Mesta Machine Company is one of the large business corporations of the nation. The primary obligation of Mesta to pay the purchase price is evidenced by the note it gave the government. If the government security is jeopardized in anywise by the tax assessments, then the complaint should so indicate so that this court can make a definitive ruling. An agreement such as made here by the Administrator of General Services Administration to carry on litigation for the benefit of a private corporation, unless approved by the Attorney General, the legal officer of the government, strikes this court as not being binding on the United States government. However, such an agreement might take on a very different aspect should it appear that the government security for the purchase price is tied into an agreement to clear the assessments and the purchase price is uncollectible unless the assessments are stricken, but again that problem is not presented in the instant case. It is this court's view that the last amendment to the complaint took the government out of court. In Harris v. Texas & Pacific Ry. Co., 7 Cir., 196 F.2d 88, at page 90, the court stated:
'* * * But jurisdiction of courts of the United States is limited to cases or controversies in law or in equity presenting justiciable issues, and such courts do not have power or jurisdiction to render purely advisory opinions for the guidance of litigants in future cases. * * *'
An appropriate order will be entered. The findings of fact and conclusions of law appear herein within the meaning of Fed.Rules Civ.Proc. Rule 52(a), 28 U.S.C.A.
And now, this 19th day of November, 1956, for the reasons herein stated, Civil Action No. 13667 is dismissed and the clerk will enter judgment in favor of the defendants Marie C. Hanlon, City Treasurer of the City of New Castle, Pennsylvania; Frank Hill, County Treasurer of Lawrence County, Pennsylvania; Howard M. Burr, School Treasurer, City of New Castle School District, New Castle, Pennsylvania; Joseph W. Gilmore, M. M. Ingham and Arson Armond, County Commissioners, Lawrence County, Pennsylvania; County of Lawrence, Commonwealth of Pennsylvania; City of New Castle, Commonwealth of Pennsylvania; City of New Castle School District, Commonwealth of Pennsylvania; and County of Lawrence Institution District, Commonwealth of Pennsylvania, and against the United States of America, without prejudice.
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