of issuing what is in effect a mandatory injunction to the President." At least, the difficulties implicit in issuance of such a decree afford a sound reason for denying the injunction sought on other grounds, if it is possible to do so. Accordingly, the district court, for considerations of policy "transcending spe. cific procedures," Rescue Army v. Municipal Court, supra, 571, should have refrained from reaching the constitutional issues if there was any other basis on which it was possible to dispose of the case. Similarly, adherence to well-settled practice dictates that this Court can reach the constitutional issues in this case only if it concludes that the usual equity requirements for issuance of a preliminary injunction have been so clearly met that "necessity compels it" to "undertake the most important and the most delicate of the Court's functions." id., at 569. We believe the usual equity requirements have not been meet here, in two respects: First, the plaintiffs have an adequate remedy at law for any injury which they may suffer; and second, even if there were no such remedy at law, the plaintiffs have failed to show any such irreparable injury as would counterbalance the injury to the public from granting an injunction. Although we would be desirous of an immediate decision on the constitutional issues, we feel that deference to the settled practice of this Court in constitutional adjudications requires that we discuss first these non-constitutional grounds of decision, either of which, we think, requires reversal of the judgment below. A. PLAINTIFFS HAVE AN ADEQUATE REMEDY AT LAW Under the fundamental rules governing equitable jurisdiction, plaintiffs are entitled to injunctive relief only if they can show either that legal relief is not available to them or that such legal remedy, although available, would be inadequate. See, e. g., Coffman v. Breeze Corporations, 323 U. S. 316, 323. We believe that plaintiffs' recourse to injunctive relief is barred because they have an effective remedy in the Court of Claims pursuant to 28 U. S. C. 1491." It has, of course, been settled in a long line of cases, beginning with United States v. Great Falls Mfg. Co., 112 U. S. 645, that where the United States takes property for public use a right to compensation is enforceable in the Court of Claims, either directly under the Constitution or by virtue of an implied contract. 28 U. S. C. 1491 (1), (4).12 42 Plaintiffs' argument is that this remedy is not available to them unless Secretary Sawyer's acts are supported by statutory or constitutional authority; hence, that the preliminary question whether plaintiffs have an adequate remedy at law hinges on the very merits of the case. We submit, on the contrary, that plaintiffs have a remedy in the Court of Claims, and that therefore the Court 40 This Court in Mississippi v. Johnson, 4 Wall, 475, 498. held unanimously that the President cannot "be restrained by injunction from carrying into effect an act of Congress alleged to be unconstitutional." Cf. State ex rel. Burnquist v. District Court, 141 Minn. 1: Dakota Coal Co. v. Fraser, 283 Fed. 415 (D. N. D.), vacated on appeal as moot, 267 Fed. 130 (C. A. 8); Holzendorf v. Hay, 20 App. D. C. 576, writ of error dismissed, 194 U. S. 373; see also Trial of Thomas Cooper, Wharton's State Trials of the United States, pp. 659, 662. With equal logic it could be argued that the President cannot be enjoined from taking action for which he claims authority in Article II of the Constitution. However, it has been contended, and the district court in this case so held, that Secretary Sawyer can be enjoined from carrying out the President's Executive Order. It is by no means clear that department heads can be enjoined from carrying out the President's express orders, by analogy to the fictitious distinction between suits against the United States and suits against an officer personally by which sovereign immunity from suit is minimized (Larson v. Foreign and Domestic Corporation, 337 U. S. 682), or by analogy to theories of indispensable parties evolved in the solution of venue problems (compare Williams v. Fanning, 332 U. S. 490, with Blackmar v. Guerre (42 U. S. 512). Such theories cannot cope with the problem which would exist if the President personally performed the duties which he here directed Mr. Sawyer to perform. It would seem, therefore, that the issue is sufficiently uncertain and delicate as to constitute a compelling reason for leaving the plaintiffs to their legal remedy for damages. 41 Section 1491 provides: "The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States: (1) Founded upon the Constitution: or (2) Founded upon any Act of Congress; or (3) Founded upon any regulation of an executive department or (4) Founded upon any express or implied contract with the United States; or 42 See. e. g., United States v. Great Falls Mfg. Co., 112 U. S. 645: United States v. Lynah. 188 U. S. 445, 465 Tempel v. United States, 248 U. S. 121: United States v. North American Transp. & Trading Co., 253 U. S. 330: Campbell v. United States, 266 U. S. 368; Phelps v. United States, 274 U. S. 341; International Paper Co. v. United States, 282 U. S. 399: Hurley v. Kincaid, 285 U. S. 95 Yearsley v. W. A. Ross Construction Co.. 309 U. S. 18: United States v. Causby, 328 U. S. 256: United States v. Dickinson, 331 U. S. 745: United States v. Kansas City Ins. Co., 339 U. S. 799. need not reach any of the constitutional questions in order to decide that an injunction may not issue. In such a practical matter as the granting or withholding of an injunction, the formal concession of government counsel, repeated in three courts, that suit may be brought and that no defense of lack of jurisdiction can or will be raised, should be sufficient. See Pewee Coal Co. v. United States, 115 C. Cls. 626, affirmed, 341 U. S. 114. But even on the theoretical level, plaintiffs need have no fears. For, however one may formulate the rule that unauthorized takings cannot provide the basis for a Tucker Act suit, the qualification has always been recognized that the Court of Claims does have undoubted cognizance of cases, such as this, where a taking of the claimant's property is authorized by statute, although the particular method of taking actually employed by the government official may be claimed to be illegal. In addition, it may now be the law that the Court of Claims has jurisdiction of suits for just compensation for eminent domain takings without regard to whether a taking was legislatively authorized. 1. Even if we accept at face value the doctrine, asserted by plaintiffs, that the Court of Claims remedy depends strictly upon an authorized taking, it is clear that statutory warrant does exist for a taking by the President and, therefore, that plaintiffs have an indisputable cause of action in that court. Rather than alleging a total absence of any authority in the President to seize the plants, the companies themselves suggest that there are statutes under which the plants could have been seized, but that, since the procedure provided for in those acts has not been followed, they are now entitled to affirmative relief. It is settled, however, that where a taking has been authorized, the use of another method of seizure and the failure to employ the statutory procedure will neither defeat the remedy in the Court of Claims nor justify the issuance of injunctive relief. The Youngstown and United States Steel complaints both refer to Section 18 of the Selective Service Act of 1948 (62 Stat. 625, 50 U. S. C. App., Supp. IV, 468) (par. 6, R. 2, and par. 12, R. 83, respectively), authorizing the President to place vital defense orders with a manufacturer and to seize his plant if he refuses or fails to fill the order. The United States Steel complaint (par. 12, R. 83) also refers to Section 201 of the Defense Production Act of 1950 as amended (64 Stat. 799, 65 Stat. 132, 50 U. S. C. A. App. 2081), which authorizes the President, whenever he deems it necessary in the interest of national defense, to acquire personal property by requisition and "real property, including facilities, temporary use thereof, or other interest therein" by way of condemnation. The statute provides that if the property is to be acquired by condemnation the court shall not require the party in possession to surrender possession, unless a declaration of taking has been filed and the amount estimated to be just compensation has been deposited." The complaints correctly allege that the Government has not complied with the procedural requirements of either statute, but it is undeniable that the President acted for the same public purpose for which the two Acts envisage that private enterprises might have to be taken. Section 201, for instance, authorizes the President to acquire property whenever he deems it necessary in the interest of national defense. Executive Order 10340 (R. 6-9) contains findings to the effect that a work stoppage would immediately jeopardize and imperil our national defense and that seizure of the steel industry was necessary in order to assure the continued availability of steel and steel products during the present emergency. Hence, conditions existed which would have warranted use of Section 201 (b) if that procedure has not been much too cumbersome, involved, and time-consuming for the crisis which was at hand. 43 This provision is analogous to the one contained in the Declaration of Taking Act (Act of Feb. 26, 1931, 46 Stat. 1421, 40 U. S. C. 258a). As originally enacted, the Defense Production Act of 1950 (P. L. No. 774, 81st Cong., 2d Sess.) assimilated real to personal property and provided that both should be compulsorily acquired by the process of requisition, i. e., by an administrative taking to be followed by a suit for just compensation brought by the claimant. For reasons of convenience and efficiency, and in order to follow the traditional practice in the condemnation of realty, the Department of Justice proposed an amendment providing that real property be condemned in accordance with the Declaration of Taking Act and the general condemnation statutes. This change was adopted in the Defense Production Act Amendments of 1951 (P. L. No. 96, 82d Cong., 1st Sess.). The amendment was plainly not intended to hamper or obstruct the acquisition of interests in real property. See H. Rept. No. 639, 82d Cong., 1st Sess., pp. 23-24, 36. Thus, the President had undoubted statutory power to seize the plaintiffs' properties for temporary use. Congress had itself authorized a taking by the President, even if it had not provided for this kind or method of taking. Once it is shown that the seizing officer had such general authority to take, the Court of Claims' just compensation jurisdiction is undeniable, whether or not the statutory procedures were followed. The most common instance is furnished by the Tucker Act flooding cases. In each, instead of bringing an ordinary condemnation suit under the Act of August 1, 1888, 25 Stat. 357, 40 U. S. C. 257, a statutory authority similar to Section 201, the government officers proceeded with their rivers and harbors works until the owners' lands were flooded and thereby taken. The owners have repeatedly sued and received just compensation in the Court of Claims for the taking. See the cases cited in fn. 42, supra, p. 55. They have not been defeated by any contention that condemnation proceedings should have been followed. On the contrary, the Court held in Jacobs v. United States, 290 U. S. 13, 16: The suits were based on the right to recover just compensation for property taken by the United States for public use in the exercise of its power of eminent domain. That right was guaranteed by the Constitution. The fact that condemnation proceedings were not instituted and that the right was asserted in suits by the owners did not change the essential nature of the claim. The form of the remedy did not qualify the right. It rested upon the Fifth Amendment. Statutory recognition was not necessary. A promise to pay was not necessary. Such a promise was implied because of duty to pay imposed by the Amendment. The suits were thus founded upon the Constitution of the United States. And the Court only recently reaffirmed the interchangeability of the two proceedings in flooding cases. United States v. Dickinson, 331 U. S. 745, 747-748. The same interchangeability exists where dry land is taken. See, e. g., United States v. North American Transp. & Trading Co., 253 U. S. 330, 333; Stubbs v. United States, 21 F. Supp. 1007 (M. D. N. C.); Tilden v. Unietd States, 10 F. Supp. 377 (W. D. La.). In all of these numerous instances, a statutory method of condemnation was provided, and in many, the authorizing statute provided that the land be acquired by condemnation proceedings; but instead of using that mechanism the officials appropriated the property by direct invasion. In each case, a suit for just compensation under the Tucker Act was entertained. Further examples of Tucker Act jurisdiction on the basis of informal eminent domain are the cases in which a normal condemnation suit has been instituted and possession taken, but the suit has later been abandoned by the Government or held not to include certain tracts. The dispossessed owners have their remedy in the Court of Claims or in the District Court under the Tucker Act. State Road Department of Florida v. United States, 166 F. 2d 843 (C. A. 5); Moody v. Wickard, 136 F. 2d 801, 803-804 (C. A. D. C.), certiorari denied, 320 U. S. 775; cf. United States v. Merchants Transfer & Storage Co., 144 F. 2d 324, 327 (C. A. 9). And this Court has emphatically declared that after a taking has been consummated, the right to recover compensation cannot be defeated because of a technical defect in the authority of the official who took the property. See International Paper Co. v. United States, 282 U. S. 399, 406, infra, p. 71. Applying these principles and directly controlling is Hurley v. Kincaid, 285 U. S. 95, in which the Court refused to grant an injunction in circumstances apposite here. Kincaid sought to enjoin Secretary of War Hurley from constructing certain flood control work on the Mississippi River which would subject Kincaid's property to flooding, unless the Government first acquired an easement on his property by condemnation. The applicable statues," analogous to Section 201 (b) of the Defense Production Act, provided that before the United States acquired possession it had to file a condemnation petition in court and deposit an amount of money approved by the court as assuring certain and adequate provision for the payment of just compensation. The Government had complied with none of those provisions. Instead, the officers of the Corps of Engineers were about to undertake construction which, Kincaid claimed, would result in the flooding of his land. He sought to stop the work until the officers complied with the applicable condemnation procedure." "The Mississippi River Flood Control Act of May 15, 1928, sec. 4, 45 Stat. 536, and the River and Harbor Act of 1918, sec. 5, 40 Stat. 911. 45 Kincaid's brief in this Court urged, as the plaintiffs do here, that the statutory procedure for condemnation was exclusive and had to be followed if a taking was to be effected. See Brief for Respondent, No. 457, Oct. Term, 1931, at pp. 59, 72. The Court held flatly that Kincaid was not entitled to an injunction. It pointed out (at p. 104) that a taking was authorized by the statutes cited above and that the plaintiff, consequently, had a remedy in the Court of Claims. The failure to comply with the statutory direction to condemn prior to the taking did not justify the issuance of injunctive relief. Said the Court (at p. 104): The compensation which he may obtain in such a proceeding [under the Tucker Act] will be the same as that which might have been awarded had the defendants instituted the condemnation proceedings which it is contended the statute requires. Nor is it material to inquire now whether the statute does so require. For even if the defendants are acting illegally, under the Act, in threatening to proceed without first acquiring flowage rights over the complainant's lands, the illegality, on complainant's own contention, is confined to the failure to compensate him for the taking, and affords no basis for an injunction if such compensation may be procured in an action at law. The Fifth Amendment does not entitle him to be paid in advance of the taking [citing authorities]. In short, the test for the grant of injunctive relief is not whether or not the government has complied with the statutory taking procedure," but whether the plaintiff has a remedy in the Court of Claims. Such a remedy is available whenever a taking is authorized by legislation." 2. It may also be the case that, aside from the Hurley v. Kincaid principle we have just discussed, the Court of Claims would have jurisdiction of a just compensation suit by the plaintiffs even though no statute existed authorizing the President to take property. It is true that it has often been said or assumed that an action against the United States for just compensation presupposes that the officers who invaded the plaintiff's property rights had authority to do so. But the reach and application of this rule in Tucker Act suits have not been crystallized and the tendency of the recent cases, particularly in the Court of Claims, is to disregard the issue of authority in favor of assuming jurisdiction wherever there has been an actual physical taking and where the Constitution directs that compensation be paid. (a). The two basic Tucker Act decisions which ground the asserted rule are themselves unclear. Hooe v. United States, 218 U. S. 322, involved an express limitation upon the officer's authority (see Larson v. Domestic and Foreign Commerce Corp., 337 U. S. 682, 701, fn. 24), a factor which is usually absent and is certainly not present here. The precedential value on this point of United States v. North American Co., 253 U. S. 330, is lessened by the circumstance that it rested on "special facts" (cf. Jacobs v. United States, 290 U. S. 13, 18, and Shoshone Tribe v. United States, 299 U. S. 476, 497), including the element that North American's claim would have been barred by the statute of limitations if the officer who originally took the property had been authorized to do so. A number of recent lower court Tucker Act cases seem to make the right to sue for just compensation dependent not upon the taking officer's authority but upon the consideration that where the Government retains the benefit of seized property the owner may seek compensation without showing that the seizure was valid. In Oro Fino Consolidated Mines, Inc. v. United States, 118 C. Cls. 18, 23, certiorari denied, 341 U. S. 948, the Court of Claims stated "that the Government cannot escape liability by pleading that it lacked authority to take what it did in fact take and retain. *** If Order L-208 resulted in an unauthorized taking, it was a taking of which the Government retained the benefit and for which it would therefore be obligated to pay". In Foster v. United States, 98 F. Supp. 349, 351-2 (C. Cls.), certiorari denied, 342 U. S. 919, the same court strongly intimated that an action for just compensation would lie in every case in which a person's property is kept from him by the United States for its own use. Only the other day, the court declared that in cases where a regulation or statute is unconstitutional as violative of due process, just compensation An analogous rule applies in the field of damages. The owner the property, which has not been condemned, has no remedy in damages against a government contractor provided he has recourse to the Court of Claims. Yearsley v. Ross Construction Co., 309 U. S. 18. 47 Cf. Larson v. Domestic and Foreign Commerce Corp., 337 U. S. 682, 697, fn. 18. 48 Cf. United States v. Lynah, 188 U. S. 445, 465-6: That which the officers did is admitted by the answer to have been done by authority of the government, and although there may have been no specific act of Congress directing the appropriation of this property of the plaintiffs, yet if that which the officers of the government did, acting under its direction, resulted in an appropriation it is treated as the act of the government. [Emphasis supplied.] may still be decreed "if an actual taking [has] been alleged, proved, and loss established ***." Idaho Maryland Mines Corp. v. United States, C. Cls. No. 50182, decided May 6, 1952, slip op. p. 10." See also, for cases disregarding or omitting consideration of the taker's authority but nevertheless awarding just compensation, Forest of Dean Iron Ore Co. v. United States, 106 C. Cls. 250, 265–7; Niagara Falls Bridge Commission v. United States, 111 C. Cls. 338, 352–3; Cotton Land Co. v. United States, 109 C. Cls. 810, 830-832; International Harvester Co. v. United States, 72 C. Cls. 707; Thayer v. United States, 20 C. Cls. 137. The lessened stress which appears to be placed on the issue of authority, and the heightened concern with providing a Court of Claims remedy for a taking, is also revealed in recent decisions of this Court. United States v. Causby, 328 U. S. 256, involved the taking of an easement over property adjoining an airfield by frequent flights at low altitude. This Court held the owner of the land entitled to compensation without discussing the authority of the military to make such low flights or to appropriate the easement. This disposition of the case is in marked contrast with the decision in Portsmouth Co. v. United States, 260 U. S. 327, which involved the analogous situation of artillery fire over private property. There, the Court expressly indicated that the plaintiff could recover only if it established "authority on the part of those who did the act" (at 330). Again, in United States v. Pewee Coal Co., 341 U. S. 114, this issue which, if material, would be of a jurisdictional nature (see Hooe v. United States, 218 U. S. 322, 336) was not explicitly passed upon by the Court. It is true that in Pewee the Government had not defended on the ground that the taking was unauthorized (cf. Pewee Coal Co. v. United States, 115 C. Cls. 626, 676), but the Government's brief before this Court disclosed that the seizure had not been based on any specific statutory authority, and jurisdictional issues may be noticed on a court's own motion (United States v. Corrick, 298 U. S. 435, 440; United States v. Wheelock Bros., Inc., 341 U. S. 319).51 Another facet of the same concern with providing, rather than denying, a just compensation remedy is shown by Cities Service Co. v. McGrath, 342 U. S. 330, 335-6 (affirming 189 F. 2d 744, 747 (C. A. 2), and Silesian-American Corp. v. Clark, 332 U. S. 469, 479–480 (affirming 156 F. 2d 793, 797 (C. A. 2)), both of which construed the Tucker Act as available to persons from whom property was taken under the Trading with the Enemy Act but whose remedy under that Act was deemed too narrow. See also Sherr v. Anaconda Wire & Cable Co., 149 F. 2d 680, 681-2 (if statute cutting off informer's right of action deprived him of "vested right", suit for just compensation was available in the Court of Claims); Larson v. Domestic & Foreign Corp., 337 U. S. 682, 697, fn. 18 ("Where the action against which specific relief is sought is a taking or holding of the plaintiff's property, the availability of a suit for compensation against the sovereign [in the Court of Claims] will defeat a contention that the action is unconstitutional as a violation of the Fifth Amendment"); Yearsley v. Ross Construction Co., 309 U. S. 18, 21-22 (Tucker Act remedy available instead of suit against Government rep resentatives alleged to have taken the plaintiff's property); Fay v. Miller, 183 F.2d 986, 989 (C. A. D. C.) (b). Whatever may be the ultimate general principle distilled from these latterday developments in the jurisprudence of the Tucker Act, we suggest that in this case the broad doctrine which plaintiffs proclaim should not be applied. Perhaps the most important reason for insisting that an unauthorized taking cannot subject the United States to liability is to prevent executive officials from violating express prohibitions imposed by Congress. See Hooe v. United States, 218 U. S. 322, supra, p. 64. A second purpose is, perhaps, to forestall minor officials from seizing property unnecessarily or for personal reasons or through collusion. Neither of these ends is served by requiring the President's authority in this case to be fully vindicated before suit can be properly maintained under the Tucker Act. Congress has not prohibited the President from doing what he has done here. And it is the President himself, acting in a grave national emergency 49 The court also said (slip op., p. 10): "A regulation which is unconstitutional as violative of due process, because arbitrary, may well result in a taking of the property effected for which just compensation would be due to the extent of the value of the property rights so taken." 50 See Government's Brief in No. 168, October Term, 1950, pp. 42-44. 51 As we point out below (pp. 140-141), the Pewee decision may also be read as holding that a taking like this one is valid and authorized. |