Youngstown Sheet & Tube Co. v. Sawyer

Youngstown Sheet & Tube Co. v. Sawyer () 103 F.Supp. 569, affirmed.
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FRANKFURTER, J., Concurring Opinion

SUPREME COURT OF THE UNITED STATES

343 U.S. 579

Youngstown Sheet & Tube Co. v. Sawyer

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued: May 12-13, 1952June 2, 1952 [*] --- Decided:

MR. JUSTICE FRANKFURTER, concurring.

Before the cares of the White House were his own, President Harding is reported to have said that government, after all, is a very simple thing. He must have said that, if he said it, as a fleeting inhabitant of fairyland. The opposite is the truth. A constitutional democracy like ours is perhaps the most difficult of man's social arrangements to manage successfully. Our scheme of society is more dependent than any other form of government on knowledge and wisdom and self-discipline for the achievement of its aims. For our democracy implies the reign of reason on the most extensive scale. The Founders of this Nation were not imbued with the modern cynicism that the only thing that history teaches is that it teaches nothing. They acted on the conviction that the experience of man sheds a good deal of light on his nature. It sheds a good deal of light not merely on the need for effective power if a society is to be at once cohesive and civilized, but also on the need for limitations on the power of governors over the governed.

To that end, they rested the structure of our central government on the system of checks and balances. For them, the doctrine of separation of powers was not mere theory; it was a felt necessity. Not so long ago, it was fashionable to find our system of checks and balances obstructive to effective government. It was easy to ridicule that system as outmoded -- too easy. The experience through which the world has passed in our own day has made vivid the realization that the Framers of our Constitution were not inexperienced doctrinaires. These long-headed statesmen had no illusion that our people enjoyed biological or psychological or sociological immunities from the hazards of concentrated power. It is absurd to see a dictator in a representative product of the sturdy democratic traditions of the Mississippi Valley. [p594] The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.

The Framers, however, did not make the judiciary the overseer of our government. They were familiar with the revisory functions entrusted to judges in a few of the States, and refused to lodge such powers in this Court. Judicial power can be exercised only as to matters that were the traditional concern of the courts at Westminster, and only if they arise in ways that to the expert feel of lawyers constitute "Cases" or "Controversies." Even as to questions that were the staple of judicial business, it is not for the courts to pass upon them unless they are indispensably involved in a conventional litigation -- and then only to the extent that they are so involved. Rigorous adherence to the narrow scope of the judicial function is especially demanded in controversies that arouse appeals to the Constitution. The attitude with which this Court must approach its duty when confronted with such issues is precisely the opposite of that normally manifested by the general public. So-called constitutional questions seem to exercise a mesmeric influence over the popular mind. This eagerness to settle -- preferably forever -- a specific problem on the basis of the broadest possible constitutional pronouncements may not unfairly be called one of our minor national traits. An English observer of our scene has acutely described it:

At the first sound of a new argument over the United States Constitution and its interpretation, the hearts of Americans leap with a fearful joy. The blood stirs powerfully in their veins, and a new lustre brightens their eyes. Like King Harry's men before Harfleur, they stand like greyhounds in the slips, straining upon the start.

The Economist, May 10, 1952, p. 370. [p595]

The path of duty for this Court, it bears repetition, lies in the opposite direction. Due regard for the implications of the distribution of powers in our Constitution and for the nature of the judicial process as the ultimate authority in interpreting the Constitution, has not only confined the Court within the narrow domain of appropriate adjudication. It has also led to "a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision." Brandeis, J., in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 346. A basic rule is the duty of the Court not to pass on a constitutional issue at all, however narrowly it may be confined, if the case may, as a matter of intellectual honesty, be decided without even considering delicate problems of power under the Constitution. It ought to be, but apparently is not, a matter of common understanding that clashes between different branches of the government should be avoided if a legal ground of less explosive potentialities is properly available. Constitutional adjudications are apt, by exposing differences, to exacerbate them.

So here, our first inquiry must be not into the powers of the President, but into the powers of a District Judge to issue a temporary injunction in the circumstances of this case. Familiar as that remedy is, it remains an extraordinary remedy. To start with a consideration of the relation between the President's powers and those of Congress -- a most delicate matter that has occupied the thoughts of statesmen and judges since the Nation was founded and will continue to occupy their thoughts as long as our democracy lasts -- is to start at the wrong end. A plaintiff is not entitled to an injunction if money damages would fairly compensate him for any wrong he may have suffered. The same considerations by which the Steelworkers, in their brief amicus, demonstrate, from the seizure here in controversy, consequences [p596] that cannot be translated into dollars and cents, preclude a holding that only compensable damage for the plaintiffs is involved. Again, a court of equity ought not to issue an injunction, even though a plaintiff otherwise makes out a case for it, if the plaintiff's right to an injunction is overborne by a commanding public interest against it. One need not resort to a large epigrammatic generalization that the evils of industrial dislocation are to be preferred to allowing illegality to go unchecked. To deny inquiry into the President's power in a case like this, because of the damage to the public interest to be feared from upsetting its exercise by him, would, in effect, always preclude inquiry into challenged power, which presumably only avowed great public interest brings into action. And so, with the utmost unwillingness, with every desire to avoid judicial inquiry into the powers and duties of the other two branches of the government, I cannot escape consideration of the legality of Executive Order No. 10340.

The pole-star for constitutional adjudications is John Marshall's greatest judicial utterance, that "it is a constitution we are expounding." McCulloch v. Maryland, 4 Wheat. 316, 407. That requires both a spacious view in applying an instrument of government "made for an undefined and expanding future," Hurtado v. California, 110 U.S. 516, 530, and as narrow a delimitation of the constitutional issues as the circumstances permit. Not the least characteristic of great statesmanship which the Framers manifested was the extent to which they did not attempt to bind the future. It is no less incumbent upon this Court to avoid putting fetters upon the future by needless pronouncements today.

Marshall's admonition that "it is a constitution we are expounding" is especially relevant when the Court is required to give legal sanctions to an underlying principle of the Constitution -- that of separation of powers. [p597] "The great ordinances of the Constitution do not establish and divide fields of black and white." Holmes, J., dissenting in Springer v. Philippine Islands, 277 U.S. 189, 209.

The issue before us can be met, and therefore should be, without attempting to define the President's powers comprehensively. I shall not attempt to delineate what belongs to him by virtue of his office beyond the power even of Congress to contract; what authority belongs to him until Congress acts; what kind of problems may be dealt with either by the Congress or by the President, or by both, cf. La Abra Silver Mng. Co. v. United States, 175 U.S. 423; what power must be exercised by the Congress and cannot be delegated to the President. It is as unprofitable to lump together in an undiscriminating hotch-potch past presidential actions claimed to be derived from occupancy of the office as it is to conjure up hypothetical future cases. The judiciary may, as this case proves, have to intervene in determining where authority lies as between the democratic forces in our scheme of government. But, in doing so, we should be wary and humble. Such is the teaching of this Court's role in the history of the country.

It is in this mood and with this perspective that the issue before the Court must be approached. We must therefore put to one side consideration of what powers the President would have had if there had been no legislation whatever bearing on the authority asserted by the seizure, or if the seizure had been only for a short, explicitly temporary period, to be terminated automatically unless Congressional approval were given. These and other questions, like or unlike, are not now here. I would exceed my authority were I to say anything about them.

The question before the Court comes in this setting. Congress has frequently -- at least 16 times since 1916 -- [p598] specifically provided for executive seizure of production, transportation, communications, or storage facilities. In every case, it has qualified this grant of power with limitations and safeguards. This body of enactments -- summarized in tabular form in Appendix I, post, p. 615 -- demonstrates that Congress deemed seizure so drastic a power as to require that it be carefully circumscribed whenever the President was vested with this extraordinary authority. The power to seize has uniformly been given only for a limited period or for a defined emergency, or has been repealed after a short period. Its exercise has been restricted to particular circumstances such as "time of war or when war is imminent," the needs of "public safety" or of "national security or defense," or "urgent and impending need." The period of governmental operation has been limited, as, for instance, to "sixty days after the restoration of productive efficiency." Seizure statutes usually make executive action dependent on detailed conditions: for example, (a) failure or refusal of the owner of a plant to meet governmental supply needs or (b) failure of voluntary negotiations with the owner for the use of a plant necessary for great public ends. Congress often has specified the particular executive agency which should seize or operate the plants or whose judgment would appropriately test the need for seizure. Congress also has not left to implication that just compensation be paid; it has usually legislated in detail regarding enforcement of this litigation-breeding general requirement. (See Appendix I, post, p. 615.)

Congress, in 1947, was again called upon to consider whether governmental seizure should be used to avoid serious industrial shutdowns. Congress decided against conferring such power generally and in advance, without special Congressional enactment to meet each particular need. Under the urgency of telephone and coal strikes in [p599] the winter of 1946, Congress addressed itself to the problems raised by "national emergency" strikes and lockouts.^[n1] The termination of wartime seizure powers on December 31, 1946, brought these matters to the attention of Congress with vivid impact. A proposal that the President be given powers to seize plants to avert a shutdown where the "health or safety" of the Nation was endangered was thoroughly canvassed by Congress, and rejected. No room for doubt remains that the proponents as well as the opponents of the bill which became the Labor Management Relations Act of 1947 clearly understood that, as a result of that legislation, the only recourse for preventing a shutdown in any basic industry, after failure of mediation, was Congress.^[n2] Authorization for seizure as [p600] an available remedy for potential dangers was unequivocally put aside. The Senate Labor Committee, through its Chairman, explicitly reported to the Senate that a general grant of seizure powers had been considered and rejected in favor of reliance on ad hoc legislation, as a particular emergency might call for it.^[n3] An amendment presented in the House providing that, where necessary "to preserve and protect the public health and security," the President might seize any industry in which there is [p601] an impending curtailment of production, was voted down after debate, by a vote of more than three to one.^[n4]

In adopting the provisions which it did, by the Labor Management Relations Act of 1947, for dealing with a "national emergency" arising out of a breakdown in peaceful industrial relations, Congress was very familiar with Governmental seizure as a protective measure. On a balance of considerations, Congress chose not to lodge this power in the President. It chose not to make available in advance a remedy to which both industry and labor were fiercely hostile.^[n5] In deciding that authority to seize should be given to the President only after full consideration of the particular situation should show such legislation to be necessary, Congress presumably acted on experience with similar industrial conflicts in the past. It evidently assumed that industrial shutdowns in basic industries are not instances of spontaneous generation, [p602] and that danger warnings are sufficiently plain before the event to give ample opportunity to start the legislative process into action.

In any event, nothing can be plainer than that Congress made a conscious choice of policy in a field full of perplexity and peculiarly within legislative responsibility for choice. In formulating legislation for dealing with industrial conflicts, Congress could not more clearly and emphatically have withheld authority than it did in 1947. Perhaps as much so as is true of any piece of modern legislation, Congress acted with full consciousness of what it was doing, and in the light of much recent history. Previous seizure legislation had subjected the powers granted to the President to restrictions of varying degrees of stringency. Instead of giving him even limited powers, Congress, in 1947, deemed it wise to require the President, upon failure of attempts to reach a voluntary settlement, to report to Congress if he deemed the power of seizure a needed shot for his locker. The President could not ignore the specific limitations of prior seizure statutes. No more could he act in disregard of the limitation put upon seizure by the 1947 Act.

It cannot be contended that the President would have had power to issue this order had Congress explicitly negated such authority in formal legislation. Congress has expressed its will to withhold this power from the President as though it had said so in so many words. The authoritatively expressed purpose of Congress to disallow such power to the President and to require him, when in his mind the occasion arose for such a seizure, to put the matter to Congress and ask for specific authority from it, could not be more decisive if it had been written into §§ 206-210 of the Labor Management Relations Act of 1947. Only the other day, we treated the Congressional gloss upon those sections as part of the Act. Bus Employees v. Wisconsin Board, 340 U.S. 383, 395-396. [p603] Grafting upon the words a purpose of Congress thus unequivocally expressed is the regular legislative mode for defining the scope of an Act of Congress. It would be not merely infelicitous draftsmanship, but almost offensive gaucherie, to write such a restriction upon the President's power, in terms, into a statute, rather than to have it authoritatively expounded, as it was, by controlling legislative history.

By the Labor Management Relations Act of 1947, Congress said to the President, "You may not seize. Please report to us and ask for seizure power if you think it is needed in a specific situation." This, of course, calls for a report on the unsuccessful efforts to reach a voluntary settlement, as a basis for discharge by Congress of its responsibility -- which it has unequivocally reserved -- to fashion further remedies than it provided.^[n6] But it is now claimed that the President has seizure power by virtue of the Defense Production Act of 1950 and its Amendments.^[n7] And the claim is based on the occurrence of new events -- Korea and the need for stabilization, etc. -- although it was well known that seizure power was withheld by the Act of 1947, and although the President, whose specific requests for other authority were, in the main, granted by Congress, never suggested that, in view of the new events, he needed the power of seizure which Congress in its judgment had decided to withhold from him. The utmost that the Korean conflict may imply is that it may have been desirable to have given the President further authority, a freer hand in these matters. Absence of authority in the President to deal with a crisis does not [p604] imply want of power in the Government. Conversely, the fact that power exists in the Government does not vest it in the President. The need for new legislation does not enact it. Nor does it repeal or amend existing law.

No authority that has since been given to the President can, by any fair process of statutory construction, be deemed to withdraw the restriction or change the will of Congress as expressed by a body of enactments, culminating in the Labor Management Relations Act of 1947. Title V of the Defense Production Act, entitled "Settlement of Labor Disputes," pronounced the will of Congress "that there be effective procedures for the settlement of labor disputes affecting national defense," and that "primary reliance" be placed

upon the parties to any labor dispute to make every effort, through negotiation and collective bargaining and the full use of mediation and conciliation facilities, to effect a settlement in the national interest.^[n8]

Section 502 authorized the President to hold voluntary conferences of labor, industry, and public and government representatives and to "take such action as may be agreed upon in any such conference and appropriate to carry out the provisions of this title," provided that no action was taken inconsistent with the Labor Management Relations Act of 1947.^[n9] This provision^[n10] was said by the Senate Committee [p605] on Banking and Currency to contemplate a board similar to the War Labor Board of World War II and "a national labor-management conference such as was held during World War II, when a "no strike, no lock-out" pledge was obtained."^[n11] Section 502 was believed necessary [p606] in addition to existing means for settling disputes voluntarily because the Federal Mediation and Conciliation Service could not enter a labor dispute unless requested by one party.^[n12] Similar explanations of Title V were given in the Conference Report and by Senator Ives, a member of the Senate Committee to whom Chairman Maybank during the debates on the Senate floor referred questions relating to Title V.^[n13] Senator Ives said:

It should be remembered in this connection that, during the period of the present emergency, it is expected that the Congress will not adjourn, but, at most, will recess only for very limited periods of time. If, therefore, any serious work stoppage should arise or even be threatened, in spite of the terms of the Labor-Management Relations Act of 1947, the Congress would be readily available to pass such legislation as might be needed to meet the difficulty.^[n14] [p607]

The Defense Production Act affords no ground for the suggestion that the 1947 denial to the President of seizure powers has been impliedly repealed, and its legislative history contradicts such a suggestion. Although the proponents of that Act recognized that the President would have a choice of alternative methods of seeking a mediated settlement, they also recognized that Congress alone retained the ultimate coercive power to meet the threat of "any serious work stoppage."

That conclusion is not changed by what occurred after the passage of the 1950 Act. Seven and a half months later, on April 21, 1951, the President, by Executive Order 10233, gave the reconstituted Wage Stabilization Board authority to investigate labor disputes either (1) submitted voluntarily by the parties, or (2) referred to it by the President.^[n15] The Board can only make "recommendations to the parties as to fair and equitable terms of settlement," unless the parties agree to be bound by the Board's recommendations. About a month thereafter, Subcommittees of both the House and Senate Labor Committees began hearings on the newly assigned disputes functions of the Board.^[n16] Amendments to deny the [p608] Board these functions were voted down in the House,^[n17] and Congress extended the Defense Production Act without changing Title V in relevant part.^[n18] The legislative history of the Defense Production Act and its Amendments in 1951 cannot possibly be vouched for more than Congressional awareness and tacit approval that the President had charged the Wage Stabilization Board with authority to seek voluntary settlement of labor disputes. The most favorable interpretation of the statements in the committee reports can make them mean no more than "[w]e are glad to have all the machinery possible for the voluntary settlement of labor disputes." In considering the Defense Production Act Amendments, Congress was never asked to approve -- and there is not the slightest indication that the responsible committees ever had in mind -- seizure of plants to coerce settlement of disputes. [p609] We are not even confronted by an inconsistency between the authority conferred on the Wage Board, as formulated by the Executive Order, and the denial of Presidential seizure powers under the 1947 legislation. The Board has been given merely mediatory powers similar to those of agencies created by the Taft-Hartley Act and elsewhere, with no other sanctions for acceptance of its recommendations than are offered by its own moral authority and the pressure of public opinion. The Defense Production Act and the disputes-mediating agencies created subsequent to it still leave for solution elsewhere the question what action can be taken when attempts at voluntary settlement fail. To draw implied approval of seizure power from this history is to make something out of nothing.

It is one thing to draw an intention of Congress from general language and to say that Congress would have explicitly written what is inferred, where Congress has not addressed itself to a specific situation. It is quite impossible, however, when Congress did specifically address itself to a problem, as Congress did to that of seizure, to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld. To find authority so explicitly withheld is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between President and Congress.

The legislative history here canvassed is relevant to yet another of the issues before us, namely, the Government's argument that overriding public interest prevents the issuance of the injunction despite the illegality of the seizure. I cannot accept that contention. "Balancing the equities" when considering whether an injunction should issue, is lawyers' jargon for choosing between conflicting public interests. When Congress itself has struck [p610] the balance, has defined the weight to be given the competing interests, a court of equity is not justified in ignoring that pronouncement under the guise of exercising equitable discretion.

Apart from his vast share of responsibility for the conduct of our foreign relations, the embracing function of the President is that "he shall take Care that the Laws be faithfully executed. . . ." Art. II, § 3. The nature of that authority has, for me, been comprehensively indicated by Mr. Justice Holmes.

The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power.

Myers v. United States, 272 U.S. 52, 177. The powers of the President are not as particularized as are those of Congress. But unenumerated powers do not mean undefined powers. The separation of powers built into our Constitution gives essential content to undefined provisions in the frame of our government.

To be sure, the content of the three authorities of government is not to be derived from an abstract analysis. The areas are partly interacting, not wholly disjointed. The Constitution is a framework for government. Therefore, the way the framework has consistently operated fairly establishes that it has operated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part [p611] of the structure of our government, may be treated as a gloss on "executive Power" vested in the President by § 1 of Art. II.

Such was the case of United States v. Midwest Oil Co., 236 U.S. 459. The contrast between the circumstances of that case and this one helps to draw a clear line between authority not explicitly conferred yet authorized to be exercised by the President and the denial of such authority. In both instances, it was the concern of Congress under express constitutional grant to make rules and regulations for the problems with which the President dealt. In the one case, he was dealing with the protection of property belonging to the United States; in the other, with the enforcement of the Commerce Clause and with raising and supporting armies and maintaining the Navy. In the Midwest Oil case, lands which Congress had opened for entry were, over a period of 80 years and in 252 instances, and by Presidents learned and unlearned in the law, temporarily withdrawn from entry so as to enable Congress to deal with such withdrawals. No remotely comparable practice can be vouched for executive seizure of property at a time when this country was not at war, in the only constitutional way in which it can be at war. It would pursue the irrelevant to reopen the controversy over the constitutionality of some acts of Lincoln during the Civil War. See J. G. Randall, Constitutional Problems under Lincoln (Revised ed.1951). Suffice it to say that he seized railroads in territory where armed hostilities had already interrupted the movement of troops to the beleaguered Capital, and his order was ratified by the Congress.

The only other instances of seizures are those during the periods of the first and second World Wars.^[n19] In his eleven seizures of industrial facilities, President Wilson [p612] acted, or at least purported to act,^[n20] under authority granted by Congress. Thus, his seizures cannot be adduced as interpretations by a President of his own powers in the absence of statute.

Down to the World War II period, then, the record is barren of instances comparable to the one before us. Of twelve seizures by President Roosevelt prior to the enactment of the War Labor Disputes Act in June, 1943, three were sanctioned by existing law, and six others [p613] were effected after Congress, on December 8, 1941, had declared the existence of a state of war. In this case, reliance on the powers that flow from declared war has been commendably disclaimed by the Solicitor General. Thus, the list of executive assertions of the power of seizure in circumstances comparable to the present reduces to three in the six-month period from June to December of 1941. We need not split hairs in comparing those actions to the one before us, though much might be said by way of differentiation. Without passing on their validity, as we are not called upon to do, it suffices to say that these three isolated instances do not add up, either in number, scope, duration or contemporaneous legal justification, to the kind of executive construction of the Constitution revealed in the Midwest Oil case. Nor do they come to us sanctioned by long-continued acquiescence of Congress giving decisive weight to a construction by the Executive of its powers.

A scheme of government like ours no doubt at times feels the lack of power to act with complete, all-embracing, swiftly moving authority. No doubt a government with distributed authority, subject to be challenged in the courts of law, at least long enough to consider and adjudicate the challenge, labors under restrictions from which other governments are free. It has not been our tradition to envy such governments. In any event, our government was designed to have such restrictions. The price was deemed not too high in view of the safeguards which these restrictions afford. I know no more impressive words on this subject than those of Mr. Justice Brandeis:

The doctrine of the separation of powers was adopted by the Convention of 1787 not to promote efficiency, but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, [p614] by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.

Myers v. United States, 272 U.S. 52, 240, 293.

It is not a pleasant judicial duty to find that the President has exceeded his powers, and still less so when his purposes were dictated by concern for the Nation's wellbeing, in the assured conviction that he acted to avert danger. But it would stultify one's faith in our people to entertain even a momentary fear that the patriotism and the wisdom of the President and the Congress, as well as the long view of the immediate parties in interest, will not find ready accommodation for differences on matters which, however close to their concern and however intrinsically important, are overshadowed by the awesome issues which confront the world. When, at a moment of utmost anxiety, President Washington turned to this Court for advice, and he had to be denied it as beyond the Court's competence to give, Chief Justice Jay, on behalf of the Court, wrote thus to the Father of his Country:

We exceedingly regret every event that may cause embarrassment to your administration, but we derive consolation from the reflection that your judgment will discern what is right, and that your usual prudence, decision, and firmness will surmount every obstacle to the preservation of the rights, peace, and dignity of the United States.

Letter of August 8, 1793, 3 Johnston, Correspondence and Public Papers of John Jay (1891), 489.

In reaching the conclusion that conscience compels, I too derive consolation from the reflection that the President and the Congress, between them, will continue to safeguard the heritage which comes to them straight from George Washington. [p620]

[pp. 615 et seq. - Appendix I (table)]

[p615]

APPENDIX I

SYNOPTIC ANALYSIS OF LEGISLATION

AUTHORIZING SEIZURE OF INDUSTRIAL PROPERTY

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

TERMS AND CONDITIONS OF

LIMITATIONS ON ITS EMPLOYMENT DURING

STATUTE DURATION SCOPE OF AUTHORITY EXERCISE SEIZURE COMPENSATION

As extended or

As enacted repealed

1. Railroad and Telegraph Not "in force any President may "take possession a. "When in his [the President's] None. President shall appoint three

Act of 1862, 12 Stat. 334. longer than is of" telegraph lines and rail- judgment the public safety commissioners to assess com-

necessary for the roads; prescribe rules for their may require it." pensation to which the com-

Enacted 1/31/62; suppression of operation; and place all officers b. President may not "engage pany is entitled and to report

amended, 12 Stat. 625, this rebellion." and employees under military in any work of railroad con- to Congress for its action.

7/14/62. control. struction."

2. § 120 of National No time limit. President, through the head of a. Exercisable "in time of war None. Compensation "shall be fair and

Defense Act of 1916, 39 any department, may seize or when war is imminent." just."

Stat. 166, 213, 50 U.S.C. any plant and may operate b. Plant is equipped for making

§ 80, as amended. plants through the Army Ord- "necessary supplies or equip-

nance Department. ment for the Army" or "in

Enacted 6/3/16. the opinion of the Secretary

of War" can be transformed

readily to such use.

c. Owner refuses to give govern-

ment order precedence or to

perform.

3. Army Appropriations No time limit. President, through Secretary of Exercisable "in time of war." [*] None. Compensation "shall be fair

Act of 1916, 39 Stat. 619, War, may take possession of and just."

645, 10 U.S.C. § 1361. and utilize any system or part

of any system of transporta-

Enacted 8/29/16. tion.

4. Naval Emergency Fund No time limit. President may Exercisable "in time of war" (or None.

Act of 1917, 39 Stat. 1. "take over for use or opera- of national emergency deter-

1168, 1192-1195, 50 tion" any factory "whether mined by the President before

U.S.C. § 82. [or not] the United States 3/1/18).

has . . . agreement with President shall determine "just

Enacted 3/4/17. Cf. the owner or occupier." compensation"; if the claimant

Emergency Shipping is dissatisfied, he shall be paid

Fund Act of 1917, infra.) 2. "take immediate possession a. Owner fails or refuses to give None. 50 percent of the amount de-

of any factory" producing precedence to an order for termined by the President and

ships or war material for "ships or war material as the may sue, subject to existing

the Navy. necessities of the Govern- law, in the district courts and

ment"; refuses to deliver or to the Court of Claims for the

comply with a contract as rest of "just compensation."

modified by President.

b. Exercisable within "the limits

of the amounts appropriated

therefor."

[p616]

5. Emergency Shipping To 6 months after Repealed after 3 President may Exercisable "within the limits None.

Fund Act of 1917, 40 peace with the years, § 2(a) 1. "take over for use or opera- of the amounts herein author- Same as next above, except that

Stat. 182. German Empire, (1), 41 Stat. tion" any plant, "whether ized." the prepaid percentage when

40 Stat. 182, 183. 988, 6/5/20. [or not] United States has the owner is dissatisfied is

Enacted 6/15/17. . . . agreement with the 75 percent.

owner or occupier."

2. "take immediate possession Failure or refusal of owner of None.

of any . . . plant" "equipped ship-building plant to give

for the building or produc- Government orders preced-

tion of ships or material." ence or to comply with order.

6. 1918 Amendments to To 6 months after Repealed after 2 President may a. The street railroad is neces- None.

Emergency Shipping peace with the years, 41 Stat. 1. "take possession of . . . sary for transporting em-

Fund Act of 1917. German Empire. 988, 6/5/20. any street railroad." ployees of plants which are

or may be hereafter engaged

A. 40 Stat. 535. in "construction of ships or

equipment therefor for the

Enacted 4/22/18. United States.

b. Exercisable "within the limits Same as next above.

of the amounts herein author-

ized."

B. 40 Stat. 1020, 1022 To 6 months after Repealed after 2. extend seized plants con- Exercisable "within the limits of None

peace with the 1 1/2 years, 41 structing ships or materials the amounts herein author-

German Empire. Stat. 988, 6/5/ therefor and requisition land ized."

20. for use in extensions.

7. Food and Fuel Act of To end of World President may The requisitioning is "necessary None. President "shall ascertain and

1917, 40 Stat. 276. War I with Ger- 1. requisition foods, fuels, to the support of the Army or pay a just compensation"; if

many. feeds, etc., and storage the . . . Navy, or any other the owner is dissatisfied, he

Enacted 8/10/17. facilities for them. public use connected with the shall be paid 75 percent of the

common defense." amount determined by the

§ 10, 40 Stat. 276, 279. President and may sue in the

district courts, which are here-

by given jurisdiction, for the

rest of "just compensation."

§ 12, 40 Stat. 276, 279. 2. take over any factory, a. President finds "it necessary President may make regulations

packing house, oil pipe line, to secure an adequate supply for "the employment, control,

mine, or other plant where of necessaries for . . . the and compensation of em-

any necessaries are or may Army or . . . the Navy, or ployees."

be "produced, prepared, or for any other public use con-

mined, and to operate the nected with the common Same as in the Emergency Ship-

same." defense." ping Fund Act of 1917, supra.

b. President must turn facility

back as soon as further Gov-

ernment operation "is not

essential for the national

security or defense."

[p617]

§ 25, 40 Stat. 276. 284 To end of World 3. "requisition and take over Producer or dealer President may "prescribe . . . Same as next above.

War I with Ger- the plant, business, and all a. Fails to conform to prices regulations . . . for the em-

many. appurtenances thereof be- or regulations set by the ployment, control, and com-

longing to such producer Federal Trade Commission pensation of the employees."

or dealer" of coal and coke, under the direction of the

and may operate it through President, who deems it

an agency of his choice. "necessary for the efficient

prosecution of the war,"

b. Fails to operate efficiently,

or conducts business in a

way "prejudicial to the

public interest."

8. Joint Resolution of July "during the con- Terminated on President may "take possession President deems "it necessary None. Same as next above.

16, 1918, 40 Stat. 904 tinuance of the 7/31/10 by re- . . . of [and operate] any for the national security or

present war." peal, 7/11/19, telegraph, telephone, marine defense."

41 Stat. 157. cable or radio system."

9. § 16 of Federal Water No time limit. President may take possession a. President believes, as "evi- None. Owner shall be paid "just and

Power Act of 1920, 41 of any project, dams, power denced by a written order fair compensation for the use

Stat. 1063, 1072, 16 houses, transmission lines, addressed to the holder of any of said property as may be fixed

U.S.C. § 809. etc., constructed or operated license hereunder [that] the by the [Federal Power] commis-

under a license from the Fed- safety of the United States sion upon the basis of a reason-

Enacted 6/10/20. eral Power Commission and demands it." able profit in time of peace, and

may operate them. b. Seizure is "for the purpose the cost of restoring said

of manufacturing nitrates, property to as good condition

explosives, or munitions of as existed at the time of the

war, or for any other purpose taking over thereof, less the

involving the safety of the reasonable value of any im-

United States." provements . . . made thereto

c. Control is limited to the "length by the United States and

of time as may appear to the which are valuable and service-

President to be necessary to able to the [owner]."

accomplish said purposes."

10. § 606 of Communica- No time limit. President may "use or control a. President proclaims that there None. President shall ascertain just

tions Act of 1934, 48 Stat. . . . any such station and/or exists compensation and certify it to

1064, 1104, 47 U.S.C. its apparatus and equipment (1) war or threat of war or Congress for appropriation; if

§ 606(c). by any department of the (2) a state of public peril, or the owner is dissatisfied, he shall

Government under such regu- disaster or other national be paid 75 percent of the

Enacted 6/19/34. lations as he may prescribe." emergency, amount determined by the

or President and may sue, sub-

b. It is necessary to preserve ject to existing law, in the

the neutrality of the United district courts and the Court of

States. Claims for the rest of "just

compensation."

[p618]

11. Amendments to Com- No time limit. Same power as in § 606(c), Com- a. President proclaims a state or None. Same as next above.

munications Act, 56 Stat. munications Act of 1934, next threat of war.

18, 47 U.S.C. § 606(d). above. b. President "deems it neces-

sary in the interest of the na-

Enacted 1/26/42. tional security and defense."

c. Power to seize and use prop-

erty continues to "not later

than six months after the

termination of such state or

threat of war" or than a date

set by concurrent resolution

of Congress.

12. § 8(b) of National De- No time limit. Repealed in less Secretary of Navy, under Presi- a. Secretary of Navy deems any Secretary of Navy may operate Secretary of Navy may "fix the

fense Act of 1940, 54 than 3 months, dent's direction, may "take existing plant necessary for the plant "either by Govern- compensation."

Stat. 676, 680. 9/16/40, 54 over and operate such plant the national defense. ment personnel or by contract

Stat. 885, 893 or facility." b. He is unable to reach agree- with private firms."

ment with its owner for its

use or operation.

13. §9 of Selective Training To 5/15/45, 54 Extended to President may "take immedi- a. Plant is equipped for or None. "The compensation . . . shall be

and Service Act of 1940, Stat. 885, 897. 3/31/47, 60 ate possession of any such capable of being readily trans- fair and just."

54 Stat. 885, 892, 50 Stat. 341, 342. plant." (Extended by formed for the manufacture of

U.S.C.App. (1946 ed.) amendment to "any plant, necessary supplies.

§ 309. mine, or facility" capable of b. Owner refuses to give Govern-

producing "any articles or ment order precedence or to

Enacted 9/16/40; amend- materials which may be re- fill it.

ed by War Labor Dis- quired . . . or which may be

putes Act, 57 Stat. 163, useful" for the war effort.

164, q.v., infra. 57 Stat. 163, 164.)

14. § 3 of War Labor Dis- To termination of President may "take immedi- a. Finding and proclamation Same "terms and conditions of Same as next above.

putes Act of 1943, 57 this Act by con- ate possession" of "any plant, by the President that employment which were in

Stat. 163, 164, 50 U.S.C. current resolu- mine, or facility equipped for (1) there is an interruption effect at the time [of taking]

App. (1946 ed.) § 1503. tion by Congress the manufacture, production, on account of a labor dis- possession," except that terms

or of hostilities. or mining of any articles or turbance, and conditions might be

Enacted 6/25/43. Plants seized pre- materials which may be re- (2) the war effort will be un- changed by order of the War

viously may be quired . . . or which may be duly impeded, Labor Board, on application.

operated until 6 useful" for the war effort. (3) seizure is necessary to in- §§ 4, 5, 57 Stat. 163, 165.

months after sure operation.

termination of b. Plant must be returned to

hostilities. owner within 60 days "after

the restoration of the produc-

tive efficiency."

[p619]

15. Title VIII, Repricing To termination of President may "take immediate a. The Secretary of a Depart- None. Same as next above.

of War Contracts," of hostilities. possession of the plant of ment deems the price of an

Revenue Act of 1943, 58 plants . . . and . . . operate article or service required di-

Stat. 21, 92, 50 U.S.C. them in accordance with sec- rectly or indirectly by the

App. (1946 ed.) § 1192. tion 9 of the Selective Train- Department is unreasonable.

ing and Service Act of 1940, b. The Secretary, after the re-

Enacted 2/25/44, as amended. fusal of the person furnishing

the article or service to agree

to a price, sets a price.

c. The person "wilfully refuses,

or wilfully fails" to furnish

the articles or services at the

price fixed by the Secretary.

16. Selective Service Act of No time limit. President may "take immediate a. President with advice of the None. "Fair and just compensation

1948, 62 Stat. 604, 625 possession of any plant, mine, National Security Resources shall be paid."

626, 50 U.S.C.App. or other facility . . . and to Board determines prompt de-

§ 468. operate it . . . and to livery of articles or materials

tion of such articles or mate- is "in the interest of the na-

Enacted 6/24/48. rials." tional security."

b. Procurement "has been au-

thorized by the Congress exclu-

sively for the use of the armed

forces. or the A.E.C.

c. Owner refuses or fails to give

precedence to Government

order placed with notice that

it is made pursuant to this

section, or to fill the order

properly.

17. § 201(a) of Defense To 6/30/51. But Extended to President may "requisition" President determines that None. President shall determine just

Production Act, 64 Stat. see § 716(a), 64 7/31/51, 65 "equipment, supplies or com- a. its use is "needed for na- compensation as of the time

798, 799, 50 U.S.C.App. Stat. 798, 822. Stat. 110, ponent parts thereof, or mate- tional defense," the property is taken; if owner

§ 2081(a). Extended to rials or facilities necessary for b. the need is "immediate and is dissatisfied, he shall be

6/30/52, § 111, the manufacture, servicing, impending," "will not ad- promptly paid 75 percent of

Enacted 9/8/50; 65 Stat. 131, or operation of such equip- mit of delay or resort to the amount determined by the

amendment, 65 Stat. 131, 144. ment, supplies, or component any other source of supply," President and may sue within

132, q.v., infra. parts." 64 Stat. 798, 799. c. other reasonable means of three years in the district

Restricted in the main to obtaining use of the prop- courts or the Court of Claims,

personal property by § 102(b), erty have been exhausted regardless of the amount in-

65 Stat. 132 volved, for the rest of "just

compensation."

18. § 102(b)(2) of Defense To 6/30/52, 65 Court condemnation of real President deems the real prop- None. Under existing statutes for con-

Production Act Amend- Stat. 131, 144. property in accordance with erty "necessary in the interest demnation. Immediate pos-

ments of 1951, 65 Stat. existing statutes. of national defense." session given only upon deposit

131, 132, 50 U.S.C.App. of amount "estimated to be just

§ 2081(b). compensation," 75 percent of

which is immediately paid

Enacted 7/31/51. without prejudice to the owner.

[p620]

APPENDIX II

SUMMARY OF SEIZURES OF INDUSTRIAL PLANTS

AND FACILITIES BY THE PRESIDENT

Civil War Period

DURATION OF

PLANT OR FACILITY SEIZED SEIZURE ORDER EFFECTING SEIZURE AUTHORITY CITED REASON FOR SEIZURE OPERATIONS DURING SEIZURE

From To

Railroads and telegraph lines 4/27/61 (?) Order of Secretary of War dated 4/27/61 None. Communications between Washington and Northern troops guarded railway and tele-

between Washington and appointing Thomas A. Scott officer in the North were interrupted by bands of graph facilities; they were repaired and

Annapolis, Md. charge. War of the Rebellion, Official southern sympathizers who destroyed restored to operation under orders of the

Records of the Union and Confederate railway and telegraph facilities. Secretary of War.

Armies, Ser. I, Vol. II, 603.

Telegraph lines. 2/26/62 (?) Order of Secretary of War dated 2/25/62 "by virtue of the act of Congress" (presum- To insure effective transmission and secur- Lines operated under military supervision;

appointing Anson Stager officer in charge. ably Railroad and Telegraph Act of 1862, ity of military communications. censorship of messages; lines extended and

Richardson, Messages and Papers of the 12 Stat. 334). completed subject to limitations of Joint

Resolution of July 14, 1862, 12 Stat. 625.

Railroads. 5/25/62 8/8/65 Order of Secretary of War dated 5/25/62. "by virtue of the authority vested by act of To insure effective priority to movement of Railways operated under military supervi-

Richardson, Messages and Papers of the Congress" (presumably Railroad and troops and supplies. sion; lines extended and completed subject

Presidents, Lincoln, Order of May 25, Telegraph Act of 1862, 12 Stat. 334). to limitations of Joint Resolution of

1862. July 14, 1862, 12 Stat. 625; interruption of

regular passenger and freight traffic.

World War I Period

Bigelow-Hartford Carpet Co., 12/27/17 12/31/19 Order of Secretary of War, Req. 20A/C, Constitution and laws. Requisitioned for use of United States Car-

Lowell, Mass. Ord. No. 62, dated 12/27/17. tridge Co. for cartridge manufacture.

Railroads. 12/28/17 3/1/20 Presidential proclamation, 40 Stat. 1733 Joint Resolution of April 6, 1917. Labor difficulties; congestion; ineffective Wage increase; changes in operating prac-

Joint Resolution of Dec. 7, 1917. operation in terms of war effort. tices and procedures.

Act of Aug. 29, 1916.

"all other powers thereto me enabling."

Liberty Ordnance Co., Bridge- 1/7/18 5/20/19 Order of Secretary of War, Req. 26 A/C, Constitution and laws. Inadequate financing and other difficulties Turned over to American Can Co. for oper-

port, Conn. Ord. No. 27, dated 1/5/18. leading to failure to perform contract for ation.

manufacture of 75 mm. guns.

Hoboken Land & Improvement 2/28/18 4/1/19 Order of Secretary of War, Req. 37 A/C, Constitution and laws. Requisitioned for use of Remington Arms-

Co., Hoboken, N.J. Ord. No. 516, dated 2/28/18. U.M.C. Co. for cartridge manufacture.

Bijur Motor Appliance Co., 4/1/18 5/1/19 Order of Secretary of War, Req. 37 A/C, Constitution and laws. Requisitioned for use of Remington Arms-

Hoboken, N.J. 8/15/18 Ord. No. 516, dated 2/28/18. U.M.C. Co. for cartridge manufacture.

Jewel Tea Co., Hoboken, N.J. 4/1/18 9/2/19 Order of Secretary of War, Req. 37 A/C, Constitution and laws. Requisitioned for use of Remington Arms-

U.M.C. Co. for cartridge manufacture.

[p621]

Telegraph lines. 7/25/18 7/31/19 Presidential proclamation, 40 Stat. 1807. Joint Resolution of July 16, 1918. Labor difficulties. Anti- union discrimination terminated.

"all other powers thereto me enabling."

Smith & Wesson, Springfield, 9/13/18 1/31/19 Order of Secretary of War, Req. 709 B/C, Constitution and laws. Labor difficulties. Anti-union discrimination terminated; opera-

Mass. Ord. No. 604, dated 8/31/18. tion by the National Operating Co., a

Government corporation.

Federal Enameling & Stamp- 9/23/18 12/13/18 Order of Secretary of War, Req. 738 B/C, Constitution and laws. Failure to fill compulsory order.

ing Co., McKees Rocks, Pa. Ord. No. 609, dated 9/11/18.

Mosler Safe Co., Hamilton, 9/23/19 2/25/19 Order of Secretary of War, Req. 781 B/C, Constitution and laws. Failure to fill compulsory order.

Ohio. Ord. No. 612, dated 9/23/18.

Bush Terminal Co., Brooklyn, (?) (?) (?) Act of Aug. 29, 1916. (?) (?)

N.Y. Food and Fuel Act of 1917.

World War II Period -- Seizures Connected With Labor Disputes

1. Before Pearl Harbor.

CHANGES IN CONDITIONS OF

DURATION OF EXECUTIVE DURATION OF EMPLOYMENT DURING REPORTED LEGAL

PLANT OR FACILITY SEIZED SEIZURE ORDER STATUTORY AUTHORITY CITED STOPPAGE SEIZURE BASIS FOR CHANGES ACTION

From To From To

North American Aviation, Inc., 6/9/41 7/2/71 8773. None. (Order cites contracts of com- 6/5/41 6/10/41 Property returned on agreement Agreement of parties on Na-

Inglewood, Calif. 6 Fed.Reg. 2777 pany with Government and ownership of parties to wage increase and tional Defense Mediation

by Government of machinery, mate- maintenance of membership. Board recommendation.

rials and work in progress in plant.)

Federal Shipbuilding & Drydock 8/23/41 1/6/42 8868. None. (Order cites contracts of com- 8/6/41 8/23/41 Maintenance off membership National Defense Mediation

Co., Kearny, N.J. 6 Fed.Reg. 4349. pany with Government and ownership during period of seizure. Board recommendation.

by Government of vessels under con-

struction, materials and equipment in

yard.)

Air Associates, Inc., Bendix, N.J. 10/30/41 12/29/41 8928. None. (Order cites contracts of com- 7/11/41 7/27/41 Strikers reinstated over replace- Agreement of parties on Na-

6 Fed.Reg. 5559. pany with Government and ownership ments hired by company prior tional Defense Mediation

by Government of facilities in plant.) 9/30/41 10/24/41 to seizure. Board recommendation.

2. Between Pearl Harbor and the Passage of the

War Labor Disputes Act, June 25, 1943.

Toledo, P. & W. R. Co. 3/21/42 10/1/45 9108 None. 12/28/41 3/21/42 Wage increase during period of War Labor Board recommenda- Toledo P. & W. R. Co. v. Stover,

7 Fed.Reg. 2201 seizure. tion. 60 F.Supp. 587 (S.D.Ill.1945).

General Cable Co., Bayonne, N.J., 8/13/42 8/20/42 9220 None. 8/10/42 8/13/42 None. War Labor Board recommenda-

plant. 7 Fed.Reg. 6413 tion.

S. A. Woods Machine Co., South 8/19/42 8/25/45 9225. None. None. None. Maintenance of membership. War Labor Board recommenda-

Boston, Mass. 7 Fed.Reg. 6627 tion.

Coal Mines. 5/2/43 10/12/43 9340. None. 4/22/43 5/2/43 Six-day week; eight-hour day. Order of the Secretary of In-

8 Fed.Reg. 5695. (To increase take-home pay.) terior. 341 U.S. 114; NLRB v. West Ky.

6/1/43 6/7/43* Coal Co., 152 F.2d 198 (6th Cir.

1945); Glen Alden Coal Co. v.

6/20/43 (?)* NLRB, 141 F.2d 47 (3d Cir. 1944).

American R. Co. of Porto Rico. 5/13/43 7/1/44 9341 None. 5/12/43 5/13/43 Wage increase. War Labor Board recommenda-

8 Fed.Reg. 6323. tion.

3. Between June 25, 1943, and VJ Day.

Atlantic Basin Iron Works, Brook- 9/3/43 9/22/43 9375. War Labor Disputes Act. None. None. Maintenance of membership. War Labor Board recommenda-

lyn, N.Y. 8 Fed.Reg. 12253. tion.

Coal Mines. 11/1/43 6/21/44 9393. War Labor Disputes Act. 10/12/43 11/4/43* Changes in wages and hours. Agreement with Secretary of

8 Fed.Reg. 14877. 11/1/43 Interior.

Leather Manufacturers in Salem, 11/20/43 12/13/43 9395B. None. 9/25/43 11/24/43* None. (Jurisdictional strike.) None.

Peabody, and Danvers, Mass. 8 Fed.Reg. 16957. (sporadic) (sporadic)

Western Electric Co., Point Breeze 12/19/43 3/23/44 9408. War Labor Disputes Act. 12/14/43 12/19/43 None. (Strike in protest of War None.

plant, Baltimore, Md. 8 Fed.Reg. 16958. Labor Board nonsegregation

ruling.)

Railroads. 12/30/45 1/18/44 9412. Act of Aug. 29, 1916. None. None. Control relinquished when par- Presidential arbitration based Thorne v. Washington Terminal Co.,

8 Fed.Reg. 16958 ties accepted Presidential com- on Railway Labor Act Emer- 55 F.Supp. 139 (D.D.C.1944)

promise of wage demands. gency Board recommendations.

Fall River, Mass., Textile Plants. 2/7/44 2/28/44 9420. War Labor Disputes Act. 12/13/43 2/14/44* Property returned upon agree- War Labor Board recommenda-

9 Fed.Reg. 1563. ment by parties on seniority tion.

provisions.

[343 U.S. 623]

Department of Water and Power, 2/23/44 2/29/44 9426. War Labor Disputes Act. 2/14/44 2/24/44 None. None.

Los Angeles, Calif. 9 Fed.Reg. 2113.

Jenkins Bros., Inc., Bridgeport, 4/13/44 6/15/44 9435. § 9, Selective Service Act of 1940 as None. None. Wage increase. War Labor Board recommenda- In re Jenkins Bros., Inc., 15

Conn. 9 Fed.Reg. 2113. amended. tion. W.L.R. 719 (D.D.C.1944).**

Ken-Rad Tube & Lamp Co., 4/13/44 6/15/44 9436. § 9, Selective Service Act of 1940 as None. None. Changes in wage scales; main- War Labor Board recommenda- Ken-Rad Tube & Lamp Corp. v.

Owensboro, Ky. 9 Fed.Reg. 4063. amended. tenance of membership. tion. Badeau, 55 F.Supp. 193

(W.D.Ky. 1944).**

Montgomery Ward & Co., Chi- 4/25/44 5/9/44 9438. None. None. None. None. (Government extended War Labor Board recommenda- United States v. Montgomery Ward &

cago, Ill., facilities. 9 Fed.Reg. 4459. expired contract pending tion. Co., 150 F.2d 369

NLRB election to determine (7th Cir.1945).**

bargaining representative.)

Montgomery Ward & Co., Hum- 5/21/44 7/2/45 9443. § 9, Selective Service Act of 1940 as 5/5/44 5/21/44 Maintenance of membership; War Labor Board recommenda-

mer Mfg. division, Springfield, 9 Fed.Reg. 5395 amended. voluntary check-off. tion.

Ill.

Philadelphia Transportation Co., 8/3/44 8/17/44 9459. Act of Aug. 29, 1916. 8/1/44 8/7/44* None. (Strike is protest of None United States v. McMenamin, 58 F.

Philadelphia, Pa. 9 Fed.Reg. 9878. First War Powers Act of 1941. WLB nonsegregation ruling.) Supp. 478 (E.D.Pa.1944).**

§ 9 of Selective Service Act of 1940,

as amended.

Midwest Trucking Operators. 8/11/44 1/1/45 9462. Act of Aug. 29, 1916. 8/4/44 8/11/44 Wage increase. War Labor Board recommen-

11/1/45 9 Fed.Reg. 10071. First War Powers Act of 1941. dation.

§ 9, Selective Service Act of 1940, as

amended by the War Labor Disputes Act.

San Francisco, Calif., Machine 8/14/44 9/14/45 9463. § 9, Selective Service Act of 1940 as Sporadic. Sporadic. Union agreed not to discipline War Labor Board recommend- San Francisco Lodge No. 68 IAM v.

Shops. 8/19/44 9 Fed.Reg. 9879. amended. employees who worked over- dation. Forrestal, 58 F.Supp. 466

9466. time. Cancellation of em- (N.D.Calif. 1944).

9 Fed.Reg. 10139. ployee draft deferments, gas

rations, and job referral rights.

Anthracite Coal Mines. 8/23/44 2/24/45 9469. § 9, Selective Service Act of 1940 as 6/29/44 8/23/44 None. None.

9/19/44 9 Fed.Reg. 10343. amended by the War Labor Disputes

Act. 8/?/44 9/?/44

International Nickel Co., Hunt- 8/29/44 10/14/44 9473. § 9, Selective Service Act of 1940 as 8/18/44 8/29/44 None. None.

ington, W.Va., plant. 9 Fed.Reg. 10613. amended.

[p*624]

Hughes Tool Co., Houston Tex., 9/2/44 8/29/45 9475A. § 9, Selective Service Act of 1940 as None. None. Maintenance of membership War Labor Board recommenda-

facilities. 9 Fed.Reg. 10943. amended. during period of seizure. dation.

Cleveland Graphite Bronze Co., 9/5/44 11/8/44 9477. § 9, Selective Service Act of 1940 as 8/31/44 9/5/44 Union agreed to arbitrate griev- War Labor Board recommenda-

Cleveland, Ohio. 9 Fed.Reg. 10941. amended by the War Labor Disputes ance which had precipitated dation.

Act. the strike.

Twentieth Century Brass Works, 9/9/44 2/17/45 9480. § 9, Selective Service Act of 1940 as 8/21/44 9/9/44 Wage increase. War Labor Board recommenda-

Inc., Minneapolis, Minn. 9 Fed.Reg. 11143. amended. tion.

Farrell Cheeck Steel Co., Sandus- 9/23/44 8/28/45 9484. § 9, Selective Service Act of 1940 as 9/11/44 9/23/44 Wage increase; maintenance of War Labor Board recommenda-

ky, Ohio. 9 Fed.Reg. 11731 amended by the War Labor Disputes membership during period of tion.

Act. seizure.

Toledo, Ohio, Machine Shops. 11/4/44 11/6/44 9496. § 9, Selective Service Act of 1940 as 10/27/44 11/5/44 None. (Jurisdictional strike.) None.

9 Fed.Reg. 13187. amended by the War Labor Disputes

Act.

Cudahy Bros. Co., Cudahy, Wis. 12/6/44 8/31/45 9505. § 9, Selective Service Act of 1940 as None. None. Maintenance of membership; War Labor Board recommenda-

9 Fed.Reg. 14473. amended by the War Labor Disputes voluntary check-off. tion.

Act.

Montgomery Ward & Co., Detroit, 12,27/44 10/18/45 9508. War Labor Disputes Act. 12/9/44 12/27/44 Maintenance of membership and War Labor Board recommenda- National War Labor Board v. Mont-

Mich., and other facilities. 9 Fed.Reg. 15079. § 9, Selective Service Act of 1940 as voluntary check-off during tion. gomery Ward & Co., 144 F.2d 528

amended. period of seizure. (D.C.Cir.1944).

Cleveland Electric Illuminating 1/13/45 1/15/45 9511. § 9, Selective Service Act of 1940 as 1/12/45 1/13/45 None. None.

Co., Cleveland, Ohio. 10 Fed.Reg. 549. amended.

Bingham & Garfield R.R., Utah. 1/24/45 8/29/45 9516. Act of Aug. 29, 1916. 1/23/45 1/24/45 Property returned upon agree- Railway Labor Act Emergency

10 Fed.Reg. 1313. First War Powers Act of 1941. ment by parties on wage scale Board recommendation.

War Labor Disputes Act. for certain positions.

American Enka Corp., Enka, N.C. 2/18/45 6/6/45 9523. War Labor Disputes Act. 2/7/45 2/18/45 None. (Strike over question of War Labor Board recommenda-

10 Fed.Reg. 2133. Selective Service Act as amended. contract interpretation sub- tion.

mitted to arbitration.)

Coal Mines:

Bituminous. 4/10/45 5/12/45 9536. 4/1/45 4/11/45 Wage increase. Agreement of parties.

10/25/45 10 Fed.Reg. 3939. § 9, Selective Service Act as amended by

the War Labor Disputes Act.

Anthracite. 5/3/45 6/23/45 9548. 5/1/45 6/24/45* Wage increase. Agreement of parties.

10 Fed.Reg. 5025.

Cities Service Refining Corp., 4/17/45 12/23/45 9540. § 9, Selective Service Act of 1940 as (?) 4/17/45 None. (Strike over housing None.

Lake Charles, La., plant. 10 Fed.Reg. 4193. amended by the War Labor Disputes conditions.)

Act.

United Engineering Co., Ltd., 4/25/45 8/31/45 9542. § 9, Selective Service Act of 1940 as 4/12/45 (?)* Union's privileges under con- War Labor Board recommenda-

San Francisco, Calif. 10 Fed.Reg. 4591. amended by the War Labor Disputes tract revoked. tion.

Act.

Cocker Machine & Foundry Co., 5/20/45 8/31/45 9552. § 9, Selective Service Act of 1940 as (?) 5/20/45 Wage increase; maintenance of War Labor Board recommenda-

Gastonia, N.C. 10 Fed.Reg. 5757. amended by the War Labor Disputes membership during period of tion.

Act. seizure.

Chicago, Ill., Motor Carriers. 5/23/45 8/16/45 9554. § 9, Selective Service Act of 1940 as 5/19/45 5/24/45 Wage increase. War Labor Board recommenda-

10 Fed.Reg. 5981. amended by the War Labor Disputes tion.

Act. 6/16/45 6/27/45*

Act of Aug. 29, 1916.

First War Powers Act of 1941.

Gaffney Mfg. Co., Gaffney, S.C. 5/28/45 9/9/45 9559. § 9, Selective Service Act of 1940 as (?) 5/28/45 Wage increase and maintenance War Labor Board recommenda-

10 Fed.Reg. 6287. amended by the War Labor Disputes of membership during period tion.

Act. of seizure.

Mary-Leila Cotton Mills, Greens- 6/1/45 8/31/45 9560. § 9, Selective Service Act of 1940 as 4/1/45 6/1/45 Contract extension; mainte- War Labor Board recommenda-

boro, Ga. 10 Fed.Reg. 6547. amended by the War Labor Disputes nance of membership and vol- tion.

Act. untary check-off during period

of seizure.

Humble Oil & Refining Co., Ingle- 6/5/45 8/3/45 9564. § 9, Selective Service Act of 1940 as None. None. Maintenance of membership War Labor Board recommenda- Eighth Regional War Labor Bd. v.

side, Tex., plant. 10 Fed.Reg. 6791. amended by the War Labor Disputes during period of seizure. tion. Humble Oil & Refining Co., 145

Act. F.2d 462 (5th Cir.1945).**

Pure Oil Co., Cabin Creek oil 6/6/45 9/10/45 9565. § 9, Selective Service Act of 1940 as 5/14/45 6/6/45 Maintenance of membership War Labor Board recommenda-

field, Dawes, W.Va., facilities. 10 Fed.Reg. 6792. amended by the War Labor Disputes during period of seizure. tion.

Act.

Scranton Transit Co., Scranton, 6/14/45 7/8/45 9570. § 9, Selective Service Act of 1940 as 5/20/45 6/14/45 None. None.

Pa. 10 Fed.Reg. 6792. amended by § 3 of the War Labor Dis-

putes Act.

Act of Aug. 20, 1916.

First War Powers Act of 1941.

Diamond Alkali Co., Painesville, 6/19/45 7/19/45 9574. § 9, Selective Service Act of 1940 as 6/15/45 6/19/45 Property returned upon agree- None.

Ohio. 10 Fed.Reg. 7435. amended by the War Labor Disputes ment by parties to wage in-

Act. crease.

Texas Co., Port Arthur, Tex., 7/1/45 9/10/45 9577A. § 9, Selective Service Act of 1940 as 6/29/45 7/1/45 None. (Strike over racial dis-

plant. 10 Fed.Reg. 8090. amended by the War Labor Disputes crimination.)

Act.

Goodyear Tire & Rubber Co., 7/4/45 8/30/45 9585. § 9, Selective Service Act of 1940 as 6/20/45 7/4/45 Agreement by union to submit (?).

Akron, Ohio. 10 Fed.Reg. 8335. amended by the War Labor Disputes future disputes to federal

Act. agency.

Sinclair Rubber Co., Houston, 7/19/45 11/19/45 9589A. § 9, Selective Service Act of 1940 as None. None. Change in union security ar- War Labor Board recommenda-

Tex., butadiene plant. 10 Fed.Reg. 8949. amended by the War Labor Disputes rangements. tions.

Act.

Springfield Plywood Co., Spring- 7/25/45 8/30/45 9593. § 9, Selective Service Act of 1940 as (?) 7/25/45 None. None.

field, Oreg. 10 Fed.Reg. 9379. amended by the War Labor Disputes

Act.

U.S. Rubber Co., Detroit, Mich., 7/31/45 10/10/45 9595. § 9, Selective Service Act of 1940 as 7/14/45 7/31/45 None. None.

facilities. 10 Fed.Reg. 9571. amended by the War Labor Disputes

Act.

4. Between VJ Day and the Expiration of the

War Labor Disputes Act Seizure Powers, Dec. 31, 1946.

Illinois Central R. Co. 8/23/45 5/27/46 9602. § 9, Selective Service Act of 1940 as None. None. None. (Jurisdictional strike) Railway Labor Act Emergency

10 Fed.Reg. 10957. amended by § 3 of the War Labor Board recommended against

Disputes Act. change.

Act of Aug. 29, 1916.

First War Powers Act of 1941.

Petroleum Refineries and Pipe- 10/4/45 12/12/45 9639. § 9, Selective Service Act of 1940 as 9/16/45 10/5/45 Plants returned on agreement of Ad hoc factfinding board recom-

lines. (One-half national re- 2/?/46 10 Fed.Reg. 12592. amended by the War Labor Disputes owners to 18 percent wage mendation.

fining capacity.) Act. increase.

Capital Transit Co., Washington, 11/21/45 1/7/46 9658. § 9, Selective Service Act of 1940 as 11/6/45 11/7/45 Facilities returned when parties Ad hoc arbitration board award.

D.C. 10 Fed.Reg. 14351. amended by § 3 of the War Labor agreed to arbitration award.

Disputes Act. 11/20/45 11/21/45 on wages.

Act of Aug. 29, 1916.

First War Powers Act of 1941.

Great Lakes Towing Co., Cleve- 11/29/45 12/18/46 9661. § 9. Selective Service Act of 1940 as 9/4/45 11/29/45 Wage increase. National Wage Stabilization

land, Ohio. 10 Fed.Reg. 14591. amended by § 3 of the War Labor 11/1/45 Board recommendation.

Disputes Act.

Act. of Aug. 29, 1916.

First War Powers Act of 1941.

Meatpacking Industry. 1/24/46 3/12/46 9685. § 9, Selective Service Act of 1940 as 1/16/46 1/28/46* Plants returned as companies Ad hoc factfinding board recom-

5/22/46 11 Fed.Reg. 989. amended by the War Labor Disputes agreed to wage increase rec- mendation approved by Na-

9690. Act. ommended by factfinding tional Wage Stabilization

11 Fed.Reg. 1337. board. Board.

[p*627]

New York Harbor Tugboat Com- 2/5/46 3/3/46 9693. § 9, Selective Service Act of 1940 as 2/4/46 2/13/46* Properties returned after agree- None.

panies. 11 Fed.Reg. 1421. amended by § 3 of the War Labor dis- ment of parties to arbitrate

putes Act. dispute.

Act of Aug. 29, 1916.

First War Powers Act of 1941.

Railroads. 5/17/46 5/26/46 9727. § 9, Selective Service Act of 1940 as 5/23/46 5/25/46* Properties returned after unions Railway Labor Act Emergency

11 Fed.Reg. 5461. amended by § 3 of the War Labor Dis- agreed to Presidential com- Board recommendation as

putes Act. promise of wage demands. modified by President.

Act of Aug. 29, 1916.

First War Powers Act of 1941.

Bituminous Coal Mines. 5/21/46 6/30/47 9728. § 9, Selective Service Act of 1940 as 4/1/46 5/11/46 Wage increase, welfare and re- Contract between union and United States v. United Mine

11 Fed.Reg. 5593. amended by the War Labor Disputes tirement fund, mine safety Secretary of Interior. Workers, 330 U.S. 258, Jones &

Act. 5/23/46 5/25/46* provisions, and recognition of Laughlin Steel Co. v. UMW, 159

UMW as representative of F.2d 18 (D.C.Cir.1946); Krug v.

supervisory employees during Fox, 161 F.2d 1013 (4th Cir.

period of seizure. 1947).**

Monongahela Connecting R. Co., 6/14/46 8/12/46 9736. § 8, Selective Service Act of 1940 as 6/10/46 6/14/46 None. (Property returned on None.

Pittsburgh, Pa. 11 Fed.Reg. 6661. amended by § 3 of the War Labor Dis- recession of union from wage

putes Act. demands.)

Act of Aug. 29, 1916.

First War Powers Act of 1941.

5. Since the expiration of the

War Labor Disputes Act Seizure Powers, Dec. 31, 1946.

Railroads. 5/10/48 7/9/48 9957. Act of Aug. 29, 1916. None. None. Property returned on agreement Railway Labor Act Emergency United States v. Brotherhood of

13 Fed.Reg. 2502. of parties to wage increase. Board recommendation as Locomotive Engineers, 79 F.Supp.

modified. 485 (D.D.C.1948).

Chicago, Rock Island & Pacific 7/8/50 5/23/52 10141. Act of Aug. 29, 1916. 6/25/50 7/8/50 Property returned on agreement Railway Labor Act Emergency

R.Co. 15 Fed.Reg. 4363. of parties to wage increase. Board recommendation as

modified.

Railroads. 8/27/50 5/23/52 10155. Act of Aug. 29, 1916. 12/10/50 12/15/50 Agreement reached by carriers Railway Labor Act Emergency

15 Fed.Reg. 5785. and some of the Brotherhoods Board recommendation as

1/29/51 2/19/51 put into effect. Property re- modified.

turned on agreement of parties

3/9/52 3/12/52 to wage increase.

[p*628]

World War II Period -- Seizures

Unconnected with Labor Disputes

DURATION OF EXECUTIVE

PLANT OR FACILITY SEIZED SEIZURE ORDER STATUTORY AUTHORITY CITED REASONS FOR SEIZURE CHANGES INSTITUTED DURING SEIZURE

From To

Grand River Dam Authority, Okla- 11/19/41 7/41/46 8944. § 16, Federal Power Act. This was a State power project, financed by federal Federal Works Administrator replaced management

homa. 6 Fed.Reg. 5947. loan and grant. Seizure was based on (1) State de- and completed the project. Transferred to Depart-

fault on loan interest; (2) refusal of State legislature ment of Interior, Executive Order No. 9373, 8 Fed.

to issue bonds to complete financing; (3) failure to Reg. 12001, 8/30/43. Returned pursuant to Act of

meet scheduled completion date in power-short de- July 31, 1946, 60 Stat. 743.

fense ares.

Brewster Aeronautical Corp., Long 4/18/42 5/20/42 9141. None. (1) Inefficient management; (2) failure to operate at New board of directors and officers installed; majority

Island City, N.U., Newark, 7 Fed.Reg. 2961. full capacity; (3) failure to maintain delivery sched- shareholders established 2 1/2-year voting trust in favor

N.J., Johnsville, Pa. ules on Army and Navy aircraft. (Congressional of new president.

investigation suggested labor difficulties as well, due

to employment of enemy aliens.)

Triumph Explosives, Inc., Mary- 10/12/42 2/28/43 9254. None. Overpayments (presumably bribes) of $1,400,000 to New board of directors and officers; indictments against

land and Delaware plants. 6/5/43 7 Fed.Reg. 8333. procurement officers. former officials.

Howarth Pivoted Bearings Co., 6/14/43 8/25/45 9351. None. Inefficient management. Designees of Secretary of Navy operated plant for

Philadelphia, Pa. 8 Fed.Reg. 8097. duration of war.

Remington Rand, Inc., Southport, 11/23/43 9/30/44 9399. § 9, Selective Service Act of 1940 as (1) Norden bombsight parts production of unaccept- Designees of Secretary of Navy supervised operations

N.Y., plant. 8 Fed.Reg. 16269. amended. able quality; (2) deliveries behind schedule. for duration of seizure.

Los Angeles Shipbuilding & Dry- 12/8/43 8/25/45 9400. § 9, Selective Service Act of 1940 as (1) Excessive costs; (2) production behind schedule. Operated by contractor (Todd Shipyard Co.) for dura-

dock Corp., Los Angeles, Calif. 8 Fed.Reg. 16641. amended. tion of war.

York Safe & Lock Co., York, Pa. 1/23/44 3/15/45 9416. § 9, Selective Service Act of 1940 as (1) Inefficient management; (2) deliveries behind Designees of Secretary of Navy operated company for

9 Fed.Reg.936. amended. schedule. duration of war, except for a portion which was con-

demned and transferred to Blaw-Knox Co.

Lord Mfg. Co., Erie, Pa. 10/24/45 8/25/45 9493. Tit. VIII, Revenue Act of 1943. Refusal to deliver items at "fair and reasonable Designees of Secretary of Navy operated company for

9 Fed.Reg. 12860. § 9, Selective Service Act of 1940 as prices" fixed by the Secretary of the Navy in con- duration of war.

amended.

* Governmental possession of the Nation's railroads taken on December 28, 1917, was specifically terminated by statute on March 1, 1920, prior to the end of the "war." See § 200 of the Transportation Act of 1920, 41 Stat. 456, 457.

1. Clyde B. Aitchison states that, on March 31, 1861, the Federal authorities took "under military control the Philadelphia, Wilmington & Baltimore Railway to insure uninterrupted communication between the North Atlantic States and Washington." Aitchison, War Time Control of American Railways, 26 Va.L.Rev. 847, 856 (1940). He adds that the return of the road to its private owners followed "shortly thereafter." Ibid. Original documents on this seizure are unavailable, and it has, therefore, not been included in this table.

2. The material in this table is taken from original documents in the National Archives and Hearings before the Senate Special Committee Investigating the Munitions Industry, 73d Cong., Part 17, 4270-4271 (1934).

3. Although no specific statutory authority was cited in the seizing order, it is clear from correspondence and reports in connection with the administration of the program that the seizure was effected under wartime legislation. See, e.g., Davisson, History of the Advisory Section, Administrative Division, Ordnance Office in connection with the Commandeering of Private Property, National Archives, Records of the War Department, Office of the Chief of Ordnance, O.O. 023/1362, Nov. 1920; Letter from Ordnance Office, Administrative Division to The Adjutant General, National Archives, Records of the War Department, Office of The Adjutant General, AG 386.2, Jan. 7, 1919.

4. The material in this table is summarized from a number of sources, chief of which are the War Labor Reports, contemporary accounts in the New York Times, United States National Wage Stabilization Board, Research and statics report No. 2 (1946), and Johnson, Government Seizures and Labor Disputes (Philadelphia, Pa., 1948) (unpublished doctoral dissertation at the University of Pennsylvania). Question marks appear in the tables in instances where no satisfactory information on the particular point was available.

5. Each of the Executive Orders uses the stock phrase "the Constitution and laws" as authority for the President's action, as well as his position as Commander in Chief. Only specific statutory authority relied upon is given in this table. The form of reference of the particular Executive Order is used. Statutes referred to in the table are analyzed in Appendix I, supra, p. 615. For convenience, their citations are repeated here:

(1) Army Appropriations Act of Aug. 29, 1916, 39 Stat. 619, 645, 10 U.S.C. § 1361.

(2) Federal Water Power Act of 1920, § 16, 41 Stat. 1063, 1072, 16 U.S.C. § 809.

(3) Selective Training and Service Act of 1940, § 9, 54 Stat. 885, 892.

(4) War Labor Disputes Act, § 3, 57 Stat. 163, 164.

(5) Revenue Act of 1943, Tit. VIII, "Repricing of War Contracts," 58 Stat. 21, 92.

When seizures of transportation facilities were effected through agencies other than the War Department, the First War Powers Act of 1941, 55 Stat. 838, was cited. Title I of that Act permitted the President to shift certain functions among executive agencies in aid of the war effort. The Act of Aug. 29, 1916, authorizing seizure of transportation facilities, specified that it should be accomplished through the Secretary of War.

6. Stoppages continuing during seizure are indicated by an asterisk (*).

7. Unless otherwise indicated, changes in conditions of employment instituted during seizure were continued by management upon the return of the facilities to its control.

8. Validity of seizure was challenged in comparatively few cases. Most litigation concerned the consequences of seizure. Cases in which the validity of the seizure was attacked are indicated by double asterisks (**).

9. This order was followed by a series drawn in the same terms extending the seizure to additional mines. The Executive Orders were: No. 9474; 9 Fed.Reg. 10815; No. 9476, 9 Fed.Reg. 10817; No. 9478, 9 Fed.Reg. 11045; No. 9481, 9 Fed.Reg. 11387; No. 9482, 9 Fed.Reg. 11459; No. 9483, 9 Fed.Reg. 11601.

10. A series of strikes for recognition by supervisory employees at the various mines were usually, though not always, terminated on seizure of the affected property.

11. See Lord Mfg. Co. v. Collisson, 62 F.Supp. 79 (W.D.Pa. 1945).