Armstrong v. United States (364 U.S. 40)/Concurrence Stewart

Mr. Justice STEWART concurs in the result.

Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER and Mr. Justice CLARK join, dissenting.

I agree that petitioners had valid liens on the uncompleted work and supplies at the time the property was transferred to the Government, and that such liens represented compensable property interests within the meaning of the Fifth Amendment. But the Fifth Amendment renders the Government liable only if there was a 'taking' by it of such interests. I cannot conclude, as the Court so readily does, that simply because the value of those liens was 'destroyed' there was a 'taking' of petitioners' property.

As the Court concedes, not every governmental act which ultimately destroys property rights constitutes a compensable taking of those rights. We are not here dealing with a situation in which the United States has condemned the full fee interest in property, thus purporting to extinguish all claims therein. In such a case, it may well be that lienholders are entitled to compensation for the value of their interests. See Thibodo v. United States, 10 Cir., 187 F.2d 249; cf. United States v. General Motors Corp., 323 U.S. 373, 377-378, 65 S.Ct. 357, 359, 89 L.Ed. 311. In this instance, however, the Government has not exercised its power of eminent domain with the intent and purpose of extinguishing petitioners' liens; indeed it has not exercised its power of eminent domain at all. All it has done is to exercise its undoubted power to contract and to acquire title to the property, the consequent effect of which is to render the liens unenforceable because of the independent principle of sovereign immunity. The very nature of the doctrine of sovereign immunity precludes regarding its interposition as a Fifth Amendment 'taking.' It seems to me that a Court which, having established this immunity, then declares that the Government must pay for exercising it, is effectively negativing it.

I would affirm.