Representative Whittington, supporting the bill, said (87 Cong. Rec. 5972):

We approve the course of the President of the United States in the North American air plant in California. It was never argued; it was never stated by the Attorney General that the President had such authority under section 9 of the Selective Service and Training Act. It is only maintained that he had that authority under the Constitution as Commander in Chief. I say that the bill should be enacted and that the President of the United States should be given the power by statute to do that which he did in the case of the aviation company in California.

On the other hand. Representative Dirksen contended that the bill was unnecessary (87 Cong. Rec. 3974):

Secondly, let me submit to you that the Commander in Chief who can occupy Iceland with the troops of the United States and advise Congress of this action 6 days later does not need any legislation to occupy a plant in the United States of America. He has done it once and he can do it again. Surely no proponent of the pending bill will arise to confess that what the President did before in California was or is illegal."

The Connally proposal, which had first been debated after the President's seizure of the North America plant, was again introduced by the Senator in the 78th Congress after the seizure of the coal mines. As introduced the bill was substantially the same as S. 2054, considered in the previous Congress, and it was speedily reported favorably without Committee hearings." The congressional debate reveals no purpose to impugn the President's constitutional power but, rather, indicates to the contrary. In the course of discussion, Senator Connally described on several occasions the object and scope of the bill (89 Cong. Rec. 3807) :

There is no explicit and definite provision in any statutory enactment authorizing the taking over of plants on account of labor disturbances. The authority heretofore exercised has been the general power of the President as Commander in Chief of the Army and Navy, and such subsidiary powers as were derived from the War Powers Act. The Second War Powers Act carries a clause with regard to condemnation, under which the Government may take over temporarily any plant or property, but even that does not carry the specific authority. It was my thought that, regardless of the legal technicalities involved, it would be a wholesome thing for the Congress of the United States specifically, and in direct language, to authorize the President to do these things, and to confirm and ratify, if necessary, what the President has done and let the country know that the Congress is squarely behind the President.

Similarly, Senator Austin said (89 Cong. Rec. 3896) :

The pending proposal is but a part of the whole picture

It merely

says that we will supplement the powers enumerated, which are powers given by the Constitution to government, powers which are inherent with government without being given, anyway,

General acceptance of the President's constitutional powers was also expressed by Senator Lucas, 89 Cong. Rec. 3885, Senator McClellan, ibid., 3887, and Senator Wheeler, ibid., 3887. Senator Tydings offered an amendment which would have specifically ratified the taking of the coal mines. This amendment was defeated on the pleas of Senators Connally and Barkley that such formal language of ratification might cast doubt on the validity of the President's constitutional power to take, ibid., 3989, 3992, 3993.”

Similar views as to the President's power were expressed by Rep. Dworshak, 87 Cong Rec. 5901. Ren, Faddis, ibid., 5901. Rep. Harter, ibid., 5910, and Rep. Hook, ibid, 5975 18 S. Rep. 147, 78th Cong, 1st sess.

After the enactment of the War Labor Disputes Act, identical views were expressed by Attorney General Biddle in advising President Roosevelt as to the legality of the proposed Executive Order Executive Order No. 9438, 9 F. R. 4459. April 25, 1944] directing the Secretary of Commerce to take possession of, and to operate, certain plants and facilities of Montgomery Ward. Attorney General Biddle concluded that the Act did authorize the action contemplated by the President but pointed out that (40 Op. A. G. 312, 319 3201

It is not necessary, however, to rely solely upon the provisions of section 3 of the War Labor Disputes Act As Chief Executive and as Commander-in-Chief of the Army and Navy, the President possesses an aggregate of powers that are derived from the Constitution and from various statutes enacted by the Congress for the purp< ORD of carrying on the war. The Constitution lays upon the President the duty to take care that the laws be faithfully executed The Constitution also places on the

3. Judicial precedent.-Even were there no direct judicial authorities, we believe that these historical precedents would be sufficient support for the President's action here. As Mr. Justice Holmes has cogently observed, “a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U. S. 345, 349. Contrary to plaintiffs' assertions that these precedents prove a usage but do not establish its validity, "even constitutional power, when the text is doubtful, may be established by usage." Inland Waterways Corp. v. Young, 309 U. S. 517, 525. "Both officers, law-makers and citizens naturally adjust themselves to any long-continued action of the Executive Department-on the presumption that unauthorized acts would not have been allowed to be so often repeated as to crystallize into a regular practice. That presumption is not reasoning in a circle but the basis of a wise and quieting rule that in determining the meaning of a statute or the existence of a power, weight shall be given to the usage itself-even when the validity of the practice is the subject of investigation." United States v. Midwest Oil Co., 236 U. S. 459, 472–473; United States v. Macdaniel, 7 Pet. 1, 13-14.

In any event, direct judicial recognition of the executive power to seize property to avert a crisis in time of war or national emergency is not lacking. As this Court said in United States v. Russell, 13 Wall. 623, 627:

*** in cases of extreme necessity in time of war or of immediate and impending public danger, * * * private property may be impressed into the public service, or may be seized and appropriated to the public use, or may even be destroyed without the consent of the owner. Unquestionably such extreme cases may arise, as where the property taken is imperatively necessary in time of war to construct defenses for the preservation of a military post at the moment of an impending attack by the enemy, or for food or medicine for a sick and famishing army utterly destitute and without other means of such supplies, or to transport troops, munitions of war, or clothing to reinforce or supply an army in a distant field, where the necessity for such reinforcement or supplies is extreme and imperative, to enable those in command of the post to maintain their position or to repel an impending attack, provided it appears that other means of transportation could not be obtained, and that the transports impressed for the purpose were imperatively required for such immediate use. Where such an extraordinary and unforeseen emergency occurs in the public service in time of war no doubt is entertained that the power of the government is ample to supply for the moment the public wants in that way to the extent of the immediate public exigency, but the public danger must be immediate, imminent, and impending, and the emergency in the public service must be extreme and imperative, and such as will not admit of delay or a resort to any other source of supply, and the circumstances must be such as imperatively re

President the responsibility and invests in him the powers of Commander-in-Chief of the Army and Navy. In time of war when the existence of the nation is at stake, this aggregate of powers includes authority to take reasonable steps to prevent nation-wide labor disturbances that threaten to interfere seriously with the conduct of the war. The fact that the initial impact of these disturbances is on the production or distribution of essential civilian goods is not a reason for denying the Chief Executive and the Commander-in-Chief of the Army and Navy the power to take steps to protect the nation's war effort. In modern war the maintenance of a healthy, orderly, and stable civilian economy is essential to successful military effort. The Congress has recognized this fact by enacting such statutes as the Emergency Price Control Act of 1942: the Act of October 2. 1942, entitled "An Act to Amend the Emergency Price Control Act of 1942. to aid in preventing inflation, and for other purposes: the Small Business Mobilization Law of June 11, 1942; and the War Labor Disputes Act. Even in the absence of section 3 of the War Labor Disputes Act. therefore, I believe that by the exercise of the aggregate of your powers as Chief Execntive and Commander-in-Chief, you could lawfully take possession of and operate the plants and facilities of Montgomery Ward and Company if you found it necessary to do so to prevent injury to the country's war effort.

Earlier, on October 4, 1939, Attorney General Murphy had stated as follows in reply to a request of the Senate for his opinion on the war emergency powers of the President:

You are aware, of course, that the Executive has powers not enumerated in the statutes--powers derived not from statutory grants but from the Constitution. It is universally recognized that the constitutional duties of the Executive carry with them the constitutional powers necessary for their proper performance. These constitutional powers have never been specifically defined, and in fact cannot be, since their extent and limitations are largely dependent upon conditions and circumstances. In a measure this is true with respect to most of the powers of the Executive, both constitutional and statutory. The right to take specific action might not exist under one state of facts, while under another it might be the absolute duty of the Executive to take such action. [39 Op. A. G., pp. 343, 347-348.]

quire the exercise of that extreme power in respect to the particular property so impressed, appropriated, or destroyed.

Indeed, judicial controversy in this area has not been over the question whether the power to take exists but whether just compensation was required in view of the circumstances of the taking. In the analysis which follows we shall show (1) that the pertinent cases all hold that the executive may, without statutory authorization, employ seizure as a means of averting impending crisis; (2) that the power to seize is of two types, one based on the police power and the other in the nature of eminent domain; (3) that the police power seizure, which is not involved in this case, does not require compensation; (4) that the eminent domain taking, which is here involved, requires necessity and the payment of just compensation but can be exercised without regard to its physical relation to the field of battle; and (5) that since the owner suffers no greater injury from a taking under the eminent domain power than any other person whose property is taken by the usual legislative judicial eminent domain process, a lesser degree of necessity justifies eminent domain takings as contrasted with police power seizures.

(a). The first reported American case discovered, Respublica v. Sparhawk, 1 Dall. 357, involved a claim for compensation for property removed from Philadelphia during the Revolution by order of Congress to prevent it from falling into the hands of the enemy. The property later was captured by the enemy in its new location. Compensation for its loss was denied by the Pennsylvania Supreme Court. The taking was compared to those involved in the destruction of buildings to prevent the spread of fire. Although the case did not involve a purely executive taking, the decision played a principal part in the development of the police-power branch of the law.

Two significant developments occurred in the period from the War of 1812 to the Civil War. The first was the emergence in the state courts of a clearer concept of the police power aspect of the executive power, and the second was the earliest Supreme Court decision dealing squarely with the power of the Executive to take property in wartime.

The executive power of taking was dealt with in the state courts in this period in connection with the problem of liability of municipal officers for destruction of buildings to prevent the spread of fires. The courts reasoned from the war-power precedents like the Sparhawk case. Thus, in the leading case of Mayor of New York v. Lord, 18 Wend. 126 (1837), involving liability of destruction of buildings in face of fire, the court discussed the problems in terms of the recognized privilege to destroy property without liability in case of such necessity as the advance of a hostile army. While the cases are not unanimous as to compensation, they hold generally, reasoning from the maxim salus populi est suprema ler and from the analogy of wartime emergency, that property may be destroyed under such circumstances without compensation." In the cases falling in later periods this authority is rested explicitly on the police power." The leading case of the period is Parham v. The Justices, 9 Ga. 341, 348, 349 (1851), a case involving an eminent domain problem not directly relevant to this discussion, but in which the court enunciated a principle often referred to in later decisions that "in cases of urgent public necessity, which no law has anticipated, which cannot await the action of the Legislature," property may be taken without compensation on the theory of salus populi. The examples given are those arising from the incidence of war."

Meeker v. Van Rensselaer, 15 Wend. 397 (1836); Russell v. Mayor of New York, 2 Den. 461 (1845); American Print Works v. Lawrence, 23 N. J. L. 590 (1851); Surocco v. Geary, 3 Cal. 69 (1853); McDonald v. City of Red Wing, 13 Minn. 38 (1868).

Aitken v. Village of Wells River, 70 Vt. 308 (1898); Bowditch v. Boston, 101 TS 16. 2 Cooley, Constitutional Limitations (8th ed.) 1313; David, Municipal Liability in Tort in California, 6 S. Cal. L. R. 269.

The full quotation is as follows:

"It is not to be doubted but that there are cases in which private property may be taken for a public use, without the consent of the owner, and without compensation and without any provision of law for making compensation These are cases of urgent public necessity, which no law has anticipated, and which cannot await the action of the Legislature. In such cases, the injured individual has no redress at law those who seize the property are not trespassers, and there is no relief for him but by petition to the Legislature. For example: the pulling down houses, and raising bulwarks for the defense of the State against an enemy; seizing corn and other provislons for the sustenance of an army in time of war, or taking cotton bags, as Gen. Jackson did at Orleans, to build ramparts against an invading foe

"These cases illustrate the maxim, salus populi suprema lez. Per Buller. 3. Plate Glass Co. v. Meredith, 4 T. R 797. Noy's Maxims, 9th ed., p. 36. Dyer 60 b Broom's Maxims, 1. 2 Bulst. 61. 12 Coke, 13. [The Saltpeter Case, ed note) Ib. 65, 2 Kent's Com. 338. 1 Bl. Com. 101, note 18, by Chitty. Extreme necessity alone can justify these cases and all others occupying the same ground.”

The case of Mitchell v. Harmony, 13 How. 115 (1852) was the first to come to this Court involving the executive power of emergency taking. The facts were as follows:

Harmony was a naturalized Spanish-American who took a large wagon train for trading purposes from Independence, Missouri, to El Paso during the Mexican War. Colonel Doniphan's unit, under the distant command of General Kearney, was in El Paso with about 1,000 men at the same time. Doniphan determined to attack Chihuahua, about 300 miles away in Mexico, and by order of his subordinate, Lt. Col. Mitchell, Harmony was compelled to accompany the troops in his wagon train. Other traders in El Paso were given similar orders. The purposes of the order were threefold: Doniphan felt it necessary to enlarge his tiny military force by adding to it the 300 teamsters in the trading party; he desired the wagons for the formation of corrals on the march in case he should be attacked by the enemy if left behind or, more important in Harmony's case, that Harmony himself might trade with the enemy if left to his own devices." The wagon train was therefore taken to Chihuahua, and subsequently fell into the hands of the enemy there.

Upon his return to the United States, Harmony petitioned Congress for compensation for his losses. Bills for this purpose were considered in both Houses in the 30th and 31st Congresses in 1848, 1849, and 1850, and bills on the subject passed each House. However, no agreement between the two Houses was ever reached, and Harmony thereupon sued Mitchell personally for damages." The case was tried before a jury in the Circuit Court in New York with Mr. Justice Nelson, on circuit, presiding. On the basis of Justice Nelson's charge, 1 Blatch. 549, the jury, without leaving its seats, gave a verdict to Harmony for $90,000.

25

Before the case came to this Court, Congress acted. On March 11, 1852, it passed an act, 10 Stat. 727, providing that Mitchell should be represented in the Supreme Court by the Attorney General, and that any judgment resulting should be paid by the United States.

The case thus came to the Court in this posture: Harmony's property had been taken by military action. Despite prevailing sentiment in both Houses of Congress that Harmony should be compensated, no compensation bill had been enacted. Harmony had no way of suing the United States, for the Court of Claims had not yet been created, and such cases as United States v. Great Falls Mfg. Co., 112 U. S. 645, and United States v. Lynah, 188 U. S. 445, holding the United States liable for takings on a theory of implied contract, were still many years in the future. Indeed, the first decision that the United States possessed a power of eminent domain was still more than twenty years distant, Kohl v. United States, 91 U. S. 367 (1876). The United States, as the Court knew," had assumed Mitchell's liability, and the only possible way of compensating Harmony under the circumstances was by affirming the jury's verdict. The Court affirmed. It held that the trial judge had correctly instructed the jury that a military officer had the power to take private property for a public use but that the power could be exercised only in the event of an emergency." The core of the Court's opinion on this point is contained in the following passage, pp. 133, 134:

There are, without doubt, occasions in which private property may lawfully be taken possession of or destroyed to prevent it from falling into the hands of the public enemy; and also where a military officer, charged

23 Depositions of Doniphan and Major Clark in Record of Mitchell v. Harmony, Sup. Ct., No. 178, Dec. term, 1851.

For record of Harmony's claim in Congress, see Sen. Misc. Docs. No. 11, 30th Cong., 1st sess.; H. Rept. No. 458, 30th Cong., 1st sess.: Cong. Globe, 30th Cong., 2d sess., 580-581. Senator Mason, in reporting the bill to the Senate, said: "Now, I apprehend it is clear that where private property is seized in time of war by a military officer for public purposes, the owner has a right to claim its value from the Government" (Cong. Globe, supra, 580). 2513 How. at 141.

It is significant that the executive power to take property had been often exercised and had been expressly recognized by this Court before the Congressional power of eminent domain became established. The Russell case cited supra, p. 122, antedated Kohl v. United States by five years.

In accordance with the Compensation Act, Mitchell was represented in the Supreme Court by the Attorney General. The case was fully discussed by a Member of Congress with Justice Nelson when the compensation bill was before the House, and the Justice's informal views were before Congress. Cong. Globe, 32d Cong., 1st sess., 663.

28 This emergency power was conceded by counsel for Harmony, who cited as precedent for its existence the New York fire case, Mayor v. Lord, supra. Mitchell v. Harmony, supra, 124.

with a particular duty, may impress private property into the public service or take it for public use. Unquestionably, in such cases, the government is bound to make full compensation to the owner; but the officer is not a trespasser.

But we are clearly of opinion, that in all of these cases the danger must be immediate and impending; or the necessity urgent for the public service, such as will not admit of delay, and where the action of the civil authority would be too late in providing the means which the occasion calls for. It is impossible to define the particular circumstances of danger or necessity in which this power may be lawfully exercised. Every case must depend on its own circumstances. It is the emergency that gives the right, and the emergency must be shown to exist before the taking can be justified. The Court did not consider whether on the facts in the case an emergency existed that justified the taking. The Court said specifically that that question was not before it; that it was a question of fact upon which the jury had passed and that the Court would confine its consideration to "whether the law was correctly stated in the instruction of the court." 13 How. 134. Thus, although the actual holding of the Mitchell case is that the taking was invalid, the Court reached that result solely because of a jury finding that no emergency existed which justified the exercise of power which the Court ruled was possessed by the executive.

(b). As a result of the widespread executive takings during the Civil War, innumerable claims arose before state courts," Congress," the President, and the Federal courts in the reconstruction years. Congress, after elaborate debate, brought the problem to a sharp issue by passing, in 1872, a bill authorizing payment of a claim of J. Milton Best for compensation for destruction of his house by military order in the course of the defense of a fort at Paducah, Kentucky." President Grant vetoed the Best bill and in so doing enunciated the distinction subsequently adopted by the Supreme Court between two types of wartime taking. He said, in a passage later quoted with approval in United States v. Pacific Railroad, 120 U. S. 227, 238:

It is a general principle of both international and municipal law that all property is held subject not only to be taken by the Government for public uses, in which case, under the Constitution of the United States, the owner is entitled to just compensation, but also subject to be temporarily occupied. or even actually destroyed, in times of great public danger, and when the public safety demands it; and in this latter case governments do not admit a legal obligation on their part to compensate the owner. The temporary occupation of, injuries to, and destruction of property caused by actual and necessary military operations are generally considered to fall within the last-mentioned principle. If a government makes compensation under such circumstances it is a matter of bounty rather than a strict legal right."

Meanwhile, the courts were creating a formal distinction between the two types of executive taking. In Grant v. United States, 1 Ct. Cls. 41 (1863), the issue was whether plaintiff should recover for destruction of his property at Tucson, Arizona, by a military order which had as its purpose the keeping of

In Tennessee and Virginia it was held that action by municipal executives in collaboration with townspeople to destroy liquor which might otherwise have fallen to a vancing Federal troops was a justifiable, noncompensable taking on the theory of *g'us populi Harrison v. Wisdom, 54 Tenn. (7 Heisk) 99 (1872): Wallace v. City of Rich mond, 94 Va. 204 1897). Both decisions rely on the conflagration cases discussed above. In Tennessee the impressment of wood for use on a government railroad in a freed v territory was also upheld. Taylor v. Nashville & Chattanooga Railroad Co., 6 Cold (Tens, i 646 (1869); and the impressment of horses by executive action was upheld in MisoKE TE PÍ, Wellman y Wickerman, 44 Mo. 484 (1868).

In 1874 a Committee on War Claims of the House of Representatives submitted an elaborate report, usually referred to as the Lawrence Report. H. Rep. No 262 43rd Cong, 1st Sess. This report carefully distinguished between seizures on the theory of salus populi and takings by eminent domain Report, n. 45. The report emnet e tha* "there is a law overruling necessity, entirely distinct from the right of eminent dors.n Ibid. 50

"The prolonged debate on the Best bill called forth learned and elaborate angi pent from many members of Congress The speakers explored thoroughly all writ precedent ancient and modern. Cong Globe, 41st Cong 3d sexs 47 165 295 3'1 similar disenssion in the preceding Congress ecncerned the claim of Sue Morpher house in Decatur Alabama was destroyed by the military authorities for the pinque construction of fortifications many months after the entire area had been ta Union forces For discussion see Cong. Globe, 40th Cong., 3d sex, 274 293 $1

7 Richardson supra, 172 173 President Grant followed these principles in vetoing a subsequent bill for compensation for destruction of a salt works in Kentucky Did 2:6