of the corporation were close to $ 2,000,000.00. This stock, as a profit corporation, was exchanged for stock of Forest Lawn Gardens, Inc., a non-profit corporation, with assets in 1958 of approximately $ 190,000.00.
We are not concerned here with the merits of valuation or assessment. The questions as raised are simply:
(1) Should the Government be permitted to make payment of the amount of money which it tenders and for which the plaintiffs ask in their complaint, and further be permitted to withdraw its counterclaim and have the action against it dismissed; and
(2) Should or could the Government be taxed with expenses demanded and costs?
In the plaintiffs' brief, as filed and at oral argument on the motion, the plaintiffs, in effect, conceded that the Government could not be impressed with such burdens as a direct measure. It was suggested that this be done on a conditional basis. The plaintiffs suggested that the matter proceed to hearing and that witnesses be heard, and so in accordance with provisions in 28 U.S.C.A. § 2412(b), the witness fees would be taxed by the Clerk and the Government be made responsible for payment.
There was, in addition, the suggestion that the Government be compelled to pay expenses which include not only that of the witnesses as accountants, but Counsel fees occasioned by the plaintiffs and others.
All these suggestions are based on highly erroneous premises. The plaintiffs' assessment is $ 2,310.50 and is one of 21 taxpayers who were assessed taxes ranging from $ 276.72 to $ 304,497.18, for a total assessment of $ 585,276.81. It would, therefore, appear quite obvious that the plaintiffs' proportionate contribution to any expenses would be empty of meaning.
Calculated on the total percent ratio makes this an insignificant amount which the plaintiffs would be obligated to pay, if indeed they are. So the incurrence of the expenses was not actually for the plaintiffs, but for the other taxpayers who will have the opportunity to avail themselves of the benefits at the proper time. To saddle the Government with 20 such taxpayers in this case would be absurd. These 20 other taxpayers in this case are not parties of record and will have their day in court. They have no direct interest in this matter, nor can they, even by common counsel, further their interests in this case. With the Government's willingness to pay the amount claimed in the complaint and further willingness to withdraw the counterclaim, the plaintiffs can gain nothing by judgment which they do not have by the granting of the Motion to Dismiss. The matter is simply moot and requires nothing that can give anyone any rights or equities to proceed further. Accordingly, the motion of the Government as defendant will be granted subject to the payment of costs by the Clerk of Courts. A separate order consistent with this opinion will be filed.
ORDER OF COURT
AND NOW, TO-WIT, this 8th day of June, 1962, for the reasons mentioned in the foregoing Opinion, the motion of the defendant to dismiss the Complaint and Counterclaim is granted with prejudice, the defendant, however, to pay the costs recorded by the Clerk.
AMENDED ORDER OF COURT
AND NOW, TO-WIT, this 5th day of July, 1962, in consideration of the decision in United States v. Mohr, 274 F.2d 803 (C.A. 4, 1960), the order in the above entitled case dated June 8th, 1962, is hereby amended to have each party bear its own costs.