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 lex 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.22

20 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).

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

22 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 provisions 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 lex. Per Buller, J., 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).26 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.

24 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.

23 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.22

32

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

29 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 advancing Federal troops was a justifiable, noncompensable taking on the theory of salus populi. Harrison v. Wisdom, 54 Tenn. (7 Heisk.) 99 (1872): Wallace v. City of Richmond, 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 friendly territory was also upheld, Taylor v. Nashrille & Chattanooga Railroad Co., 6 Cold (Tenn.) 646 (1869): and the impressment of horses by executive action was upheld in Missouri, Wellman v. Wickerman, 44 Mo. 484 (1868).

30 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 emphasizes that "there is a law overruling necessity, entirely distinct from the right of eminent domain. Ibid., 50.

31 The prolonged debate on the Best bill called forth learned and elaborate argument from many members of Congress. The speakers explored thoroughly all writers and precedent, ancient and modern. Cong. Globe, 41st Cong.. 3d sess., 97, 165, 295, 311. A similar discussion in the preceding Congress concerned the claim of Sue Murphey, whose house in Decatur, Alabama, was destroyed by the military authorities for the purpose of construction of fortifications many months after the entire area had been pacified by Union forces. For discussion, see Cong. Globe. 40th Cong., 3d sess., 274, 293, 381.

32 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. Ibid. 216.

goods out of enemy hands. The court ruled that there were two types of taking of property, one done by eminent domain, and the other under the law of "extreme necessity" (p. 45), and held that, under the eminent domain power, private property might be rightfully taken by military officers without legislative authority (p. 47). Acknowledging that this power might be exercised only in circumstances of necessity, the court laid down this general rule as the measure of necessity (pp. 47, 48):

The necessity must be urgent, but it need not be overwhelming; the danger must apparently be near and impending, but it need not be actually present, threatening instant injury to the public interests."

In two reconstruction cases, United States v. Russell, 13 Wall. 623, and United States v. Pacific Railroad, 120 U. S. 227, this Court further clarified the distinction between eminent domain and police power takings. In both cases, the Court held the executive takings to be lawful. However, because the necessity for, and circumstances of the occasions of taking differed in degree in each case, compensation was held to be due in the Russell case and not in the Pacific Railroad case.

In United States v. Russell the owner of three steamers that had been seized by Army Assistant Quartermasters at various points on the Mississippi during the Civil War brought a suit in the Court of Claims to recover compensation for their use. After temporary use by the Government the vessels had been returned to the owner. A statute had been passed on July 4, 1864, which provided that the jurisdiction of the Court of Claims should not extend to any claim against the United States growing out of the destruction or appropriation of, or damage to, property by the Army or Navy while it was engaged in the suppression of the rebellion. The United States contended that the taking of the three steamers was an “appropriation" of property within this statute and that therefore the Court of Claims had no jurisdiction to entertain a suit. The Court of Claims rejected the contention and its decision was affirmed by this Court. There was no special showing of emergency other than the bare statements of the Assistant Quartermasters that the ships were needed because of "imperative military necessity" and the Court of Claims made no finding of special necessity (5 Ct. Cls. 121). This Court stated that in extreme emergencies the executive branch of the Government possesses the taking power. It declared that in this case an emergency did exist, that the taking was lawful, that the United States was liable on a theory of implied contract for the use of the vessels, that the taking was not an appropriation within the meaning of the statute of 1864 and that the Court of Claims had properly assumed jurisdiction. See supra, p. 122. The second of this pair of Supreme Court cases was United States v. Pacific Railroad. A number of railroad bridges had been destroyed in Missouri by order of the Federal Commander to prevent the advance of the enemy in the Civil War. Other bridges were destroyed by Confederates. Four of those bridges, two of which had been destroyed by the Northern and two by the Southern Armies, were rebuilt by the United States. The issue was whether the cost of the rebuilding by the United States could be set off against claims of the railroad. The Court held that the destruction of the bridges was an act of military necessity for which the Government was not liable, and that their reconstruction was also a military necessity for which the Government could not charge the railroads. In reaching its result, the Court considered exhaustively the nature of government liability for the taking of property "during war, by the operations of armies in the field, or by measures necessary for their safety and efficiency" (120 U. S. at p. 239), for which the Government is immune from liability. "The safety of the state in such cases overrides all considerations of private loss. Salus populi is then, in truth, suprema lex." (120 U. S. at p. 234). The other type of taking is described by reference to Mitchell v. Harmony and United States v. Russell, and in such cases "it has been the practice of the Government to make compensation for the property taken." "

34

A dissenting opinion on grounds unrelated to the subject under discussion here in the Grant case is reported at 2 Ct. Cls. 551. The Grant case is followed in Wiggins v. United States, 3 Ct. Cls. 412 (1867) and see also Heflebower v. United States, 21 Ct. Cls. 228, 238 (1886).

In describing this category, the court relied on Respublica v. Sparhawk, Parham v. The Justices, Taylor v. Nashville and Chattanooga Ry., Mayor v. Lord, Vattel, and President Grant's veto message in the Best case, 120 U. S. 234, 238.

"Its obligation to do so is supposed to rest upon the general principle of justice that compensation should be made where private property is taken for public use, although the seizure and appropriation of private property under such circumstances by the military authorities may not be within the terms of the constitutional clause." 120 U. S. at 239.

Once the distinction between compensable and non-compensable, or salus populi and eminent domain, executive takings in war-time had been clearly articulated, it followed almost as a matter of course that no rigid requirements of catastrophic emergency would be established for the latter type.

In Alexander v. United States, 39 Ct. Cls. 383 (1904), the government, through the Secretary of War, after termination of hostilities in the Spanish-American war but before the treaty of peace had been signed, took possession of a farm in Pennsylvania for training camp purposes, apparently without statutory authorization. The plaintiff had a fee simple reversionary interest in the land which was being temporarily occupied by a tenant. On claim of the tenant, the War Department paid rental for the use of the land but refused to pay the plaintiff for the permanent injuries done the land during the period of government occupancy. The plaintiff sued for compensation for injuries done his reversionary interests, on an eminent domain theory. The government defended on the ground that if the plaintiff had an injury, the injury was tortious, or, failing this defense, that the taking was one which required no compensation, on the theory of the law of war. The court gave judgment for the plaintiff. Rejecting the Government's second defense, the court noted that the property taken was "more than 1,000 miles from the nearest approach of a public enemy.' But in holding the taking to have been proper and compensable, the court dealt with the element of necessity as follows:

There was a military necessity that some land in that vicinity should be taken. There is always a necessity when property is taken, and it implies no wrong on the part of the Government that it does take property without the consent of the owner. Underlying the exercise of the right is grant of power upon the expressed condition that compensation be made. [Id. at 396.]

See also, to the same effect, Philippine Sugar Estates Development Co. v. United States, 39 Ct. Cls. 225, 40 Ct. Cls. 33.

In short, at the turn of the century, the existence of executive power to seize private property during time of war or national emergency was firmly established, not only as a matter of executive construction and usage and legislative approval, but also by judicial decision. Viewing this history negatively, the executive power was frequently used and never stricken down. We know of no case which denied the existence of this power nor any instance in which a responsible majority of either House of Congress questioned its existence. Rather, as we have shown, it was always recognized that the executive does have the power and controversy arose only over the question whether a right to just compensation flowed from the circumstances surrounding the taking.

* * *

The Russell case, if it stood alone, would, we submit, sustain the President's action here. This Court squarely held there that in time of "immediate and impending public danger * private property may be impressed into the public service 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" (13 Wall. at 627-638). And, on the bare statements of the Assistant Quartermasters who commandeered the ships that they were taken because of "imperative military necessity," the Court held the takings to be lawful. Certainly, as we have shown above, pp. 9–15, 28-49, the present public danger is at least as "immediate and impending."

36

(c) But the Russell case, and the others discussed above, do not stand alone. Since the turn of the century, there has been continued judicial recognition of the President's constitutional powers in this area. Although there appears to be no reported litigation as a result of purely executive takings during World War I, the existence of the power was pointed out in an occasional strong dictum. See Roxford Knitting Co. v. Moore & Tierney, 265 Fed. 177, 179 (C. A. 2); United States v. MacFarland, 15 F. 2d 823, 826 (C. A. 4). Similar statements appeared in lower court opinions in World War II. See, e. g., Ken-Rad Tube & Lang Corp. v. Badeau, 55 F. Supp. 193, 197 (W. D. Ky.); Employers Group, etc. v. National War Labor Board, 143 F. 2d 145, 151 (C. A. D. C.), certiorari denied, 323 U. S. 735; Alpirn v. Huffman, 49 F. Supp. 337, 340 (D. Neb.) And a recent decision of this Court indirectly confirms the existence of a constitutional power in the President, in the nature of eminent domain, to seize property, during time of war or national emergency. United States v. Pewee Coal Co., Inc., 341 U. S. 114.

36 This circumstance may possibly be accounted for by the great number of requisition statutes in force during that war. See Hamilton v. Kentucky Distilleries Co., 251 U. S. 146, 155, for a collection of such statutes.