Youngstown Sheet & Tube Company v. Sawyer (343 U.S. 579)/Concurrence Frankfurter

by Felix Frankfurter

United States Supreme Court

343 U.S. 579

Youngstown Sheet & Tube Company  v.  Sawyer

 Argued: May 12 and May 13, 1952. --- Decided: June 2, 1952

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-descipline 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. 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.

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, 56 S.Ct. 466, 480, 482, 80 L.Ed. 688. 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 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, 4 L.Ed. 579. That requires both a spacious view in applying an instrument of government 'made for an underfined and expanding future,' Hurtado v. People of State of California, 110 U.S. 516, 530, 4 S.Ct. 111, 118, 28 L.Ed. 232, 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. 'The great ordinances of the Constitution do not establish and divide fields of black and white.' Holmes, J., dissenting in Springer v. Government of Philippine Islands, 277 U.S. 189, 209, 48 S.Ct. 480, 485, 72 L.Ed. 845.

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 Mine Co. v. United States, 175 U.S. 423, 20 S.Ct. 168, 44 L.Ed. 223; 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- 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-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 was 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.

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 the winter of 1946, Congress addressed itself to the problems raised by 'national emergency' strikes and lockouts. ^[1] 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. ^[2] Authorization for seizure as 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. ^[3] 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 an impending curtailment of production, was voted down after debate, by a vote of more than three to one. ^[4]

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 Government 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. ^[5] 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, 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. Amalgamated Ass'n of Street Electric Railway & Motor Coach Employees v. Wisconsin Employment Relations Board, 340 U.S. 383, 395- 396, 71 S.CT. 359, 365, 366, 95 L.ED. 364. 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 unquivocally reserved-to fashion further remedies than it provided. ^[6] But it is now claimed that the President has seizure power by virtue of the Defense Production Act of 1950 and its Amendments. ^[7] 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 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.' ^[8] 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. ^[9] This provision ^[10] was said by the Senate Committee 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.' ^[11] Section 502 was believed necessary 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. ^[12] 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. ^[13] 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.' ^[14]

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. ^[15] The Board can make only 'recommendations to the parties as to fair and equitable terms of settlement' unless the parties agree to be bound by the Board's recommendation. About a month thereafter Sub-Committees of both the House and Senate Labor Committees began hearings on the newly assigned disputes functions of the Board. ^[16] Amendments to deny the Board these functions were voted down in the House, ^[17] and Congress extended the Defense Production Act without changing Title V in relevant part. ^[18] 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 'We 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. 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 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, 47 S.Ct. 21, 85, 71 L.Ed. 160. 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 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, 35 S.Ct. 309, 59 L.Ed. 673. 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 Capitol, 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. ^[19] In his eleven seizures of industrial facilities, President Wilson acted, or at least purported to act, ^[20] 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 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 fricition, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocarcy.' Myers v. United States, 272 U.S. 52, 240, 293, 47 S.Ct. 21, 85, 71 L.Ed. 160.

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 preservations 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.

FRANKFURTER, J., concurring.

APPENDIX I - SYNOPTIC ANALYSIS OF LEGISLATION AUTHORIZING SEIZURE OF INDUSTRIAL PROPERTY.

STATUTE DURATION SCOPE OF AUTHORITY LIMITATIONS ON ITS EXERCISE TERMS AND CONDITIONS OF EMPLOYMENT DURING SEIZURE COMPENSATION As Enacted As Extended or Repealed 1. Railroad and Telegraph Act of 1862, 12 Stat. 334.

Enacted 1/31/62; amended, 12 Stat. 625, 7/14/62 Not "in force any longer than is necessary for the suppression of this rebellion." President may "take possession of" telegraph lines and railroads; prescribe rules for their operation; and place all officers and employees under military control. a. "When in his [the President's] judgment the public safety may require it."

b. President may not "engage in any work of railroad construction." None. President shall appoint three commissioners to assess compensation to which the company is entitled and to report to Congress for its action. 2. § 120 of National Defense Act of 1916, 39 Stat. 166, 213, 50 U.S.C. § 80, as amended.

Enacted 6/3/16. No time limit. President, through the head of any department, may seize any plant and may operate plants through the Army ordnance Department. a. Exercisable "in time of war or when war is imminent."

b. Plant is equipped for making "necessary supplies or equipment for the Army" or "in the opinion of the Secretary of War" can be transformed readily to such use.

c. Owner refuses to give government order precedence or to perform. None. Compensation "shall be fair and just." 3. Army Appropriations Act of 1916, 39 Stat. 619,, 645, 10 U.S.C. § 1361.

Enacted 8/29/16. No time limit. President, through Secretary of War, may take possession of and utilize any system or part of any system of transportation. Exercisable "in time of war." None. Compensation "shall be fair and just." 4. Naval Emergency Fund Act of 1917, 39 Stat. 1168, 1192 - 1195, 50 U.S.C. § 82. No time limit. President may:

1. "take over for use or operation" any factory "whether [or not] the United States has ... agreement with the owner or occupier."

2. "take immediate possession of any factory" producing ships or war material for the Navy. Exercisable "in time of war" (or of national emergency determined by the President before 3/1/18).

a. Owner fails or refuses to give precedence to an order for "ships or war material as the necessities of the Government"; refuses to deliver or to comply with a contract as modified by President.

b. Exercisable within "the limits of the amounts appropriated therefor." None.

None. President shall determine "just compensation"; if the claimant is dissatisfied, he shall be paid 50 percent of the amount determined by the President and may sue, subject to existing law, in the district courts and the Court of Claims for the rest of "just compensation."

FRANKFURTER, J., concurring.

APPENDIX I - Continued.

STATUTE DURATION SCOPE OF AUTHORITY LIMITATIONS ON ITS EXERCISE TERMS AND CONDITIONS OF EMPLOYMENT DURING SEIZURE COMPENSATION As Enacted As Extended or Repealed 5. Emergency Shipping Fund Act of 1917, 40 Stat. 182.

Enacted 6/15/17. To 6 months after peace with the German Empire, 40 Stat. 182, 183. Repealed after 3 years, § 2 (a) (1), 41 Stat. 988, 6/5/20. President may

1. "take over for use or operation" any plant, "whether [or not] United States has ... agreement with the owner or occupier."

2. "take immediate possession of any ... plant" "equipped for the building or production of ships or material." Exercisable "within the limits of the amounts herein authorized."

Failure or refusal of owner of ship-building plant to give Government orders precedence or to comply with order. None.

None. Same as next above, except that the prepaid percentage when the owner is dissatisfied is 75 percent. 6. 1918 Amendments to Emergency Shipping Fund Act of 1917.

A. 40 Stat. 535.

Enacted 4/22/18.

B. 40 Stat. 1020, 1022.

Enacted 11/4/18. To 6 months after peace with the German Empire.

To 6 months after peace with the German Empire. Repealed after 2 years, 41 Stat. 988, 6/5/20.

Repealed after 1 1/2 years, 41 Stat. 988, 6/5/20. President may

1. "take possession of ... any street railroad."

2. extend seized plants constructing ships or materials therefor and requisition land for use in extensions. a. The street railroad is necessary for transporting employees of plants which are or may be hereafter engaged in "construction of ships or equipment therefor for the United States."

b. Exercisable "within the limits of the amounts herein authorized."

Exercisable "within the limits of the amounts herein authorized." None.

None. Same as next above. 7. Food and Fuel Act of 1917, 40 Stat. 276.

Enacted 8/10/17.

§ 10, 40 Stat. 276, 279.

§ 12, 40 Stat. 276, 279. To end of World War I with Germany. President may

1. requisition foods, fuels, feeds, etc., and storage facilities for them.

2. take over any factory, packing house, oil pipe line, mine, or other plant where any necessaries are or may be "produced, prepared, or mined, and to operate the same." The requisitioning is "necessary to the support of the Army or the ... Navy, or any other public use connected with the common defense."

a. President finds "it necessary to secure an adequate supply of necessaries for ... the Army or ... the Navy, or for any other public use connected with the common defense.."

b. President must turn facility back as soon as further Government operation "is not essential for the national security or defense." None.

President may make regulations for "the employment, control, and compensation of employees." President "shall ascertain and pay a just compensation"; if the owner is dissatisfied, he shall be paid 75 percent of the amount determined by the President and may sue in the district courts, which are hereby given jurisdiction, for the rest of "just compensation."

Same as in the Emergency Shipping Fund Act of 1917, supra.

FRANKFURTER, J., concurring.

APPENDIX I - Continued.

STATUTE DURATION SCOPE OF AUTHORITY LIMITATIONS ON ITS EXERCISE TERMS AND CONDITIONS OF EMPLOYMENT DURING SEIZURE COMPENSATION As Enacted As Extended or Repealed Food and Fuel Act of 1917 - Continued.

§ 25, 40 Stat. 276, 284. To end of World War I with Germany. 3. "requisition and take over the plant, business, and all appurtenances thereof belonging to such producer or dealer" of coal and coke, and may operate it through an agency of his choice. Producer or dealer

a. Fails to conform to prices or regulations set by the Federal Trade Commission under the direction of the President, who deems it "necessary for the efficient prosecution of the war,"

or

b. Fails to operate efficiently, or conducts business in a way "prejudicial to the public interest." President may "prescribe ... regulations ... for the employment, control, and compensation of the employees." Same as next above. 8. Joint Resolution of July 16, 1918, 40 Stat. 904. "during the continuance of the present war." Terminated on 7/31/19 by repeal, 7/11/19, 41 Stat. 157. President may "take possession ... of [and operate] any telegraph, telephone, marine cable or radio system." President deems "it necessary for the national security or defense." None. Same as next above. 9. § 16 of Federal Water Power Act of 1920, 41 Stat. 1063, 1072, 16 U.S.C. § 809.

Enacted 6/10/20. No time limit. President may take possession of any project, dams, power houses, transmission lines, etc., constructed or operated under a license from the Federal Power Commission and may operate them. a. President believes, as "evidenced by a written order addressed to the holder of any license hereunder [that] the safety of the United States demands it."

b. Seizure is "for the purpose of manufacturing nitrates, explosives, or munitions of war, or for any other purpose involving the safety of the United States."

c. Control is limited to the "length of time as may appear to the President to be necessary to accomplish said purposes." None. Owner shall be paid "just and fair compensation for the use of said property as may be fixed by the [Federal Power] commission upon the basis of a reasonable profit in time of peace, and the cost of restoring said property to as good condition as existed at the time of the taking over thereof, less the reasonable value of any improvements... made thereto by the United States and which are valuable and serviceable to the [owner]." 10. § 606 of Communications Act of 1934, 48 Stat. 1064, 1104, 47 U.S.C. § 606(c).

Enacted 6/19/34. No time limit. President may "use or control ... any such station and/or its apparatus and equipment by any department of the Government under such regulations as he may prescribe." a. President proclaims that there exists

(1) war or threat of war or

(2) a state of public peril or disaster or other national emergency,

or

b. It is necessary to preserve the neutrality of the United States. None. President shall ascertain just compensation and certify it to Congress for appropriation; if the owner is dissatisfied, he shall be paid 75 percent of the amount determined by the President and may sue, subject to existing law, in the district courts and the Court of Claims for the rest of "just compensation."

FRANKFURTER, J., concurring.

APPENDIX I - Continued.

STATUTE DURATION SCOPE OF AUTHORITY LIMITATIONS ON ITS EXERCISE TERMS AND CONDITIONS OF EMPLOYMENT DURING SEIZURE COMPENSATION As Enacted As Extended or Repealed 11. Amendments to Communications Act, 56 Stat. 18, 47 U.S.C. § 606(d).

Enacted 1/26/42. No time limit. Same power as in § 606(c), Communications Act of 1934, next above. a. President proclaims a state or threat of war.

b. President "deems it necessary in the interest of the national security and defense."

c. Power to seize and use property 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. None. Same as next above. 12. § 8(b) of National Defense Act of 1940, 54 Stat. 676, 680.

Enacted 6/28/40. No time limit. Repealed in less than 3 months, 9/16/40, 54 Stat. 885, 893. Secretary of Navy, under President's direction, may "take over and operate such plant or facility." a. Secretary of Navy deems any existing plant necessary for the national defense.

b. He is unable to reach agreement with its owner for its use or operation. Secretary of Navy may operate the plant "either by Government personnel or by contract with private firms." Secretary of Navy may "fix the compensation." 13. § 9 of Selective Training and Service Act of 1940, 54 Stat. 885, 892, 50 U.S.C. App. (1946 ed.) § 309.

Enacted 9/16/40; amended 9/16/40; amended by War Labor Disputes Act, 57 Stat. 1673, 164, q. v., infra. To 5/15/45, 54 Stat. 885, 897. Extended to 3/31/47, 60 Stat., 341, 342. President may "take immediate possession of any such plant." (Extended by amendment to "any plant, mine or facility" capable of producing "any articles or materials which may be required ... or which may be useful" for the war effort. 57 Stat. 163, 164.) a. Plant is equipped for or capable of being readily transformed for the manufacture of necessary supplies.

b. Owner refuses to give Government order precedence or to fill it. None. "The compensation ... shall be fair and just." 14. § 3 of War Labor Disputes Act of 1943, 57 Stat. 163, 164, 50 U.S.C. App. *1946 ed.) § 1503.

Enacted 6/25/43. To termination of this Act by concurrent resolution by Congress or of hostilities. Plants seized previously may be operated until 6 months after termination of hostilities. President may "take immediate possession" of "any plant, mine, or facility equipped for the manufacture, production, or mining of any articles or materials which may be required ... or which may be useful" for the war effort. a. Finding and proclamation by the President that

(1) there is an interruption on account of a labor disturbance,

(2) the war effort will be unduly impeded,

(3) seizure is necessary to insure operation.

b. Plant must be returned to owner within 60 days "after the restoration of the productive efficiency." Same "terms and conditions of employment which were in effect at the time [of taking] possession," except that terms and conditions might be changed by order of the War Labor Board, on application. §§ 4, 5, 57 Stat. 163, 165. Same as next above.

FRANKFURTER, J., concurring.

APPENDIX I - Continued.

STATUTE DURATION SCOPE OF AUTHORITY LIMITATIONS ON ITS EXERCISE TERMS AND CONDITIONS OF EMPLOYMENT DURING SEIZURE COMPENSATION As Enacted As Extended or Repealed 15. Title VIII, "Repricing of War Contracts," of Revenue Act of 1943, 58 Stat. 21, 92, 50 U.S.C. App. (1946 ed.) § 1192.

Enacted 2/25/44. To termination of hostilities. President may "take immediate possession of the plant or plants ... and ... operate them in accordance with section 9 of the Selective Training and Service Act of 1940, as amended." a. The Secretary of a Department deems the price of an article or service required directly or indirectly by the Department is unreasonable.

b. The Secretary, after the refusal of the person furnishing the article or service to agree to a price, sets a price.

c. The person "willfully refuses, or wilfully fails" to furnish the articles or services at the price fixed by the Secretary. None. Same as next above. 16. Selective Service Act of 1948, 62 Stat. 604, 625, 626, 50 U.S.C. App. § 468.

Enacted 6/24/48. No time limit. President may "take immediate possession of any plant, mine, or other facility ... and to operate it ... for the production of such articles or materials." a. President with advice of the National Security Resources Board determines prompt delivery of articles or materials is "in the interests of the national security."

b. Procurement "has been authorized by the Congress exclusively 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. None. "Fair and just compensation shall be paid." 17. § 201(a) of Defense Production Act, 64 Stat. 798, 799, 50 U.S.C. App. § 2081(a).

Enacted 9/8/50; amended, 65 Stat. 131, 132, q.v., infra. To 6/30/51. But see § 716(a), 64 Stat. 798, 822. Extended to 7/31/51, 65 Stat. 110.

Extended to 6/30/52, § 111, 65 Stat. 131, 144. President may "requisition" "equipment, supplies or component parts thereof, or materials or facilities necessary for the manufacture, servicing, or operation of such equipment, supplies or component parts." 64 Stat. 798, 799. Restricted in the main to personal property by § 102(b), 65 Stat. 132. President determines that

a. its use is "needed for national defense,"

b. the need is "immediate and impending" "will not admit of delay or resort to any other source of supply,"

c. other reasonable means of obtaining use of the property have been exhausted. None. President shall determine just compensation as of the time the property is taken; if owner is dissatisfied he shall be promptly paid 75 percent of the amount determined by the President and may sue within three years in the district courts or the Court of Claims, regardless of the amount involved, for the rest of "just compensation." 18. § 102(b)(2) of Defense Production Act Amendments of 1951, 65 Stat. 131, 132, 50 U.S.C. App. § 2081(b).

Enacted 7/31/51. To 6/30/52, 65 Stat. 131, 144. Court condemnation of real property in accordance with existing statutes. President deems the real property "necessary in the interest of national defense." None. Under existing statutes for condemnation. Immediate possession given only upon deposit of amount "estimated to be just compensation," 75 percent of which is immediately paid without prejudice to the owner.

FRANKFURTER, J., concurring.

APPENDIX II. - SUMMARY OF SEIZURES OF INDUSTRIAL PLANTS AND FACILITIES BY THE PRESIDENT.

CIVIL WAR PERIOD.

PLANT OR FACILITY SEIZED DURATION OF SEIZURE ORDER EFFECTING SEIZURE AUTHORITY CITED REASON FOR SEIZURE OPERATIONS DURING SEIZURE From To Railroads and telegraph lines between Washington and Annapolis, MD. ^[1] 4/27/61 (?) Order of Secretary of War dated 4/27/61 appointing Thomas A. Scott officer in charge. War of the Rebellion, Official Records of the Union and Confederate Armies, Ser. I, Vol II, 603. None. Communications between Washington and the North were interrupted by bands of southern sympathizers who destroyed railway and telegraph facilities. Northern troops guarded railway and telegraph facilities; they were repaired and restored to operation under orders of the Secretary of War. Telegraph lines. 2/26/62. (?) Order of Secretary of War dated 2/25/62 appointing Anson Stager officer in charge. Richardson, Messages and Papers of the Presidents, Lincoln, Order of Feb. 25, 1862. "by virtue of the act of Congress" (presumably Railroad and Telegraph Act of 1862, 12 Stat. 334.) To insure effective transmission and security of military communications. Lines operated under military supervision; censorship of messages; lines extended and 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. Richardson, Messages and Papers of the Presidents, Lincoln, Order of May 25, 1862. "by virtue of the authority vested by act of Congress" (presumably Railroad and Telegraph Act of 1862, 12 Stat. 334). To insure effective priority to movement of troops and supplies. Railways operated under military supervision: lines extended and completed subject to limitations of Joint Resolution of July 14, 1862, 12 Stat. 625; interruption of regular passenger and freight traffic. World War I Period. ^[2] Bigelow-Hartford Carpet Co., Lowell, Mass. 12/27/17 12/31/19 Order of Secretary of War, Req. 20 A/C, Ord. No. 62, dated 12/27/17. Constitution and laws. ^[3] Requisitioned for use of United States Cartridge Co. for cartridge manufacture. Railroads. 12/28/17 3/1/20 Presidential proclamation, 40 Stat. 1733. Joint Resolution of April 6, 1971.

Joint Resolution of Dec. 7, 1917.

Act of Aug. 29, 1916.

"all other powers thereto me enabling." Labor difficulties; congestion; ineffective operation in terms of war effort. Wage increase; changes in operating practices and procedures. Liberty Ordnance Co., Bridgeport, Conn. 1/7/18 5/20/19 Order of Secretary of War, Req. 26 A/C, Ord. No. 27, dated 1/5/18. Constitution and laws. ^[3] Inadequate financing and other difficulties leading to failure to perform contract for manufacture of 75 mm. guns. Turned over to American Can Co. for operation. Hoboken Land & Improvement Co., Hoboken, N.J. 2/28/19 4/1/19 Order of Secretary of War, Req. 37 A/C, Ord. No. 516, dated 2/28/18. Constitution and laws. ^[3] Requisitioned for use of Remington Arms - U.M.C. Co. for cartridge manufacture. Bijur Motor Appliance Co., Hoboken N.J. 4/1/

8/15/18 5/1/19 Order of Secretary of War, Req. 37 A/C, Ord. No. 516, dated 2/28/18. Constitution and laws. ^[3] Requisitioned for use of Remington Arms - 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, Ord. No. 516, dated 2/28/18. Constitution and laws. ^[3] Requisitioned for use of Remington Arms - U.M.C. Co. for cartridge manufacture.

FRANKFURTER, J., concurring.

APPENDIX II. - Continued.

PLANT OR FACILITY SEIZED DURATION OF SEIZURE ORDER EFFECTING SEIZURE AUTHORITY CITED REASON FOR SEIZURE OPERATIONS DURING SEIZURE From To Telegraph lines. 7/25/18 7/31/19 Presidential proclamation, 40 Stat. 1807. Joint Resolution of July 16, 1918.

"all other powers thereto me enabling." Labor difficulties. Anti-union discrimination terminated. Smith & Wesson, Springfield, Mass. 9/13/18 1/31/19 Order of Secretary of War, Req. 709 B/C, Ord. No. 604, dated 8/31/18. Constitution and laws. ^[3] Labor difficulties. Anti-union discrimination terminated; operation by the National Operating Co., a Government corporation. Federal Enameling & Stamping Co., McKees Rocks, Pa. 9/23/18 12/31/18 Order of Secretary of War, Req. 738 B/C, Ord. No. 609, dated 9/11/18. Constitution and laws.3 Failure to fill compulsory order. Mosler Safe Co., Hamilton, Ohio. 9/23/18 2/25/19 Order of Secretary of War, Req. 781 B/C, Ord. No. 612, dated 9/23/18. Constitution and laws.3 Failure to fill compulsory order. Bush Terminal Co., Brooklyn, N.Y. (?) (?) (?) Act of Aug. 29, 1916.

World War II Period ^[4] -- Seizures Connected With Labor Disputes.

PLANT OR FACILITY SEIZED DURATION OF SEIZURE EXECUTIVE ORDER STATUTORY AUTHORITY CITED ^[5] DURATION OF STOPPAGE CHANGES IN CONDITIONS OF EMPLOYMENT DURING SEIZURE ^[7] BASIS FOR CHANGES REPORTED LEGAL ACTION ^[8] From To From To ^[6] North American Aviation, Inc., Inglewood, Ca. 6/9/41 7/2/41 8773.

6 Fed. Reg. 2777. None. (Order cites contracts of company with Government and ownership by Government of machinery, materials and work in progress in plant.) 6/5/41 6/10/41 Property returned on agreement of parties to wage increase and maintenance of membership. Agreement of parties on National Defense Mediation Board recommendation. Federal Shipbuilding & Drydock Co., Kearny, N.J. 8/23/41 1/6/42 8868.

6 Fed. Reg. 4349. None. (Order cites contracts of company with Government and ownership by Government of vessels under construction, materials and equipment in yard.) 8/6/41 8/23/41 Maintenance of membership during period of seizure. National Defense Mediation Board recommendation. Air Associates, Inc., Bendix, N.J. 10/30/41 12/29/41 8928.

6 Fed. Reg. 5559. None. (Order cites contracts of company with Government and ownership by Government of facilities in plant.) 7/11/

10/24/41 Strikers reinstated over replacements hired by company prior to seizure. Agreement of parties on National Defense Mediation Board recommendation.

Footnotes for this page are on the continued page

(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.

FRANKFURTER, J., concurring.

APPENDIX II - Continued.

2. Between Pearl Harbor and the Passage of the War Labor Disputes Act, June, 25, 1943.

PLANT OR FACILITY SEIZED DURATION OF SEIZURE EXECUTIVE ORDER STATUTORY AUTHORITY CITED ^[5] DURATION OF STOPPAGE CHANGES IN CONDITIONS OF EMPLOYMENT DURING SEIZURE ^[7] BASIS FOR CHANGES REPORTED LEGAL ACTION ^[8] From To From To ^[6] Toledo, P. & W. R. Co. 3/21/42 10/1/45 9108.

7 Fed. Reg. 2201. None. 12/28/41 3/21/42 Wage increase during period of seizure. War Labor Board recommendation. Toledo P. & W. R. Co. v. Stover, 60 F. Supp. 587 (S. D. Ill. 1945. General Cable Co., Bayonne, N.J., plant. 8/13/42 8/20/42 9220.

7 Fed. Reg. 6413. None. 8/10/42 8/13/42 None. War Labor Board recommendation. S. A. Woods Machine Co., South Boston, Mass. 8/19/42 8/25/42

7 Fed. Reg. 6627. None. None. None. Maintenance of membership. War Labor Board recommendation. Coal Mines. 5/2/43 10/12/43 9340.

6/7/43*

(?)* Six-day week; eight-hour day.

(To increase take-home pay.) Order of the Secretary of Interior. United States v. Pewee Coal Co., 341 U.S. 114; NLRB v. West Ky. Coal Co., 152 F.3d 198 (6th Cir. 1945); Glen Alden Coal Co. v. NLRB, 141 F.3d 47 (3d Cir. 1944.). American R. Co. of Porto Rico. 5/13/43 7/1/44 9341.

8 Fed. Reg. 6323. None. 5/12/43 5/13/43 Wage increase. War Labor Board recommendation.

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

Atlantic Basin Iron Works, Brooklyn, N.Y. 9/3/43 9/22/43 9375.

8 Fed. Reg. 12253. War Labor Disputes Act. None. None. Maintenance of membership. War Labor Board recommendation. Coal Mines. 11/1/43 6/21/44 9393.

8 Fed. Reg. 14877. War Labor Disputes Act. 10/12/

11/1/43 11/4/43* Changes in wages and hours. Agreement with Secretary of Interior. Leather Manufacturers in Salem, Peabody, and Danvers, Mass. 11/20/43 12/13/43 9395B.

(sporadic) 11/24/43* None. (Jurisdictional strike.) None. Western Electric Co., Point Breeze plant, Baltimore, Md. 12/19/43 3/23/44 9408.

8 Fed. Reg. 16958. War Labor Disputes Act. 12/14/43 12/19/43 None. (Strike in protest of War Labor Board nonsegregation ruling.) None. Railroads. 12/30/43 1/18/44 9412.

8 Fed. Reg. 17395. Act of Aug. 29, 1916. None. None. Control relinquished when parties accepted Presidential compromise of wage demands. Presidential arbitration based on Railway Labor Act Emergency Board recommendations. Thorne v. Washington Terminal Co., 55 F. Supp. 139 (D.D.C. 1944.) Fall River, Mass., Textile Plants. 2/7/44 2/28/44 9420.

9 Fed. Reg. 1563. War Labor Disputes Act. 12/13/43 2/14/44* Property returned upon agreement by parties on seniority provisions. War Labor Board recommendation.

FRANKFURTER, J., concurring.

APPENDIX II - Continued.

PLANT OR FACILITY SEIZED DURATION OF SEIZURE EXECUTIVE ORDER STATUTORY AUTHORITY CITED ^[5] DURATION OF STOPPAGE CHANGES IN CONDITIONS OF EMPLOYMENT DURING SEIZURE ^[7] BASIS FOR CHANGES REPORTED LEGAL ACTION ^[8] From To From To ^[6] Department of Water and Power, Los Angeles, Calif. 2/23/44 2/29/44 9426.

9 Fed. Reg. 2113. War Labor Disputes Act. 2/14/44 2/24/44 None. None. Jenkins Bros., Inc., Bridgeport, Conn. 4/13/44 6/15/44 9435.

9 Fed. Reg. 4063. § 9, Selective Service Act of 1940 as amended. None. None. Wage increase. War Labor Board recommendation. In re Jenkins Bros., Inc. 15 W. L. R. 719 (D.D.C. 1944.) Ken-Rad Tube & Lamp Co., Owensboro, Ky. 4/13/44 6/15/44 9436.

9 Fed. Reg. 4063. § 9, Selective Service Act of 1940 as amended. None. None. Changes in wage scales; maintenance of membership. War Labor Board recommendation. Ken-Rad Tube & Lamp Corp. v. Badeau, 55 F. Supp. 193 (W.D. Ky. 1944). Montgomery Ward & Co., Chicago, Ill., facilities 4/25/44 5/9/44 9438.

9 Fed. Reg. 4459. None. None. None. None. (Government extended expired contract pending NLRB election to determine bargaining representative.) War Labor Board recommendation. United States v. Montgomery Ward & Co., 150 F.3d 369 (7th Cir. 1945.) Montgomery Ward & Co., Hummer Mfg. division, Springfield, Ill. 5/21/44 7/2/45 9443.

9 Fed. Reg. 5395. § 9, Selective Service Act of 1940 as amended. 5/5/44 5/21/44 Maintenance of membership; voluntary check-off. War Labor Board recommendation. Philadelphia Transportation Co., Philadelphia, Pa. 8/3/44 8/17/44 9459.

9 Fed. Reg. 9878. Act of Aug. 29, 1916.

First War Powers Act of 1941.

§ 9 of Selective Service Act of 1940, as amended. 8/1/44 8/7/44* None. (Strike in protest of WLB nonsegregation ruling.) None. United States v. McMenamin, 58 F. Supp. 478 (E. D. Pa. 1944). Midwest Trucking Operators. 8/11/44 1/1/

11/1/45 9426.

9 Fed. Reg. 10071. Act of Aug. 29, 1916.

First War Powers Act of 1941.

§ 9 of Selective Service Act of 1940, as amended. 8/4/44 8/11/44 Wage increase. War Labor Board recommendation. San Francisco, Calif., Machine Shops. 8/14/

8/19/44 9/14/45 9463.

9 Fed. Reg. 9879.

9 Fed. Reg. 10139. § 9, Selective Service Act of 1940, as amended. Sporadic. Sporadic. Union agreed not to discipline employees who worked over-time. Cancellation of employee draft deferments, gas rations, and job referral rights. War Labor Board recommendation. San Francisco Lodge No. 68 IAM v. Forrestal, 58 F. Supp. 466 (N.D. Calif. 1944.) Anthracite Coal Mines. 8/23/

9 Fed. Reg. 10343. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. 6/29/

9/?/44 ^[10] None. None. International Nickel Co., Huntington, W. Va., plant. 8/29/44 10/14/44 9473.

9 Fed. Reg. 10613. § 9, Selective Service Act of 1940 as amended. 8/1844 8/29/44 None. None.

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.

FRANKFURTER, J., concurring.

APPENDIX II - Continued.

PLANT OR FACILITY SEIZED DURATION OF SEIZURE EXECUTIVE ORDER STATUTORY AUTHORITY CITED ^[5] DURATION OF STOPPAGE CHANGES IN CONDITIONS OF EMPLOYMENT DURING SEIZURE ^[7] BASIS FOR CHANGES REPORTED LEGAL ACTION8 From To From To ^[6] Hughes Tool Co., Houston Tex., facilities 9/2/44 8/29/45 9475A.

9 Fed. Reg. 10943. § 9, Selective Service Act of 1940 as amended. None. None. Maintenance of membership during period of seizure. War Labor Board recommendation. Cleveland Graphite Bronze Co., Cleveland, Ohio. 9/5/44 11/8/44 9477.

9 Fed. Reg. 10941. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. 8/31/44 9/5/44 Union agreed to arbitrate grievances which had precipitated the strike. War Labor Board recommendation. Twentieth Century Brass Works, Inc., Minneapolis, Minn. 9/9/44 2/17/45 9480.

9 Fed. Reg. 11143. § 9, Selective Service Act of 1940 as amended. 8/21/44 9/9/44 Wage increase. War Labor Board recommendation. Farrell Cheek Steel Co., Sandusky, Ohio 9/23/44 8/28/45 9484.

9 Fed. Reg. 11731. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. 9/11/44 9/23/44 Wage increase; maintenance of membership during period of seizure. War Labor Board recommendation. Toledo, Ohio, Machine Shops. 11/4/44 11/6/44 9496.

9 Fed. Reg. 13187. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. 10/27/44 11/5/44 None. (Jurisdictional strike.) None. Cudahy Bros. Co., Cudahy, Wis. 12/6/44 8/31/45 9505.

9 Fed. Reg. 14473. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. None. None. Maintenance of membership; voluntary check-off. War Labor Board recommendation. Montgomery Ward & Co., Detroit, Mich., and other facilities 12/27/44 10/18/45

9 Fed. Reg. 15079. War Labor Disputes Act.

§ 9, Selective Service Act of 1940 as amended. 12/9/44 12/27/44 Maintenance of membership and voluntary check-off during period of seizure. War Labor Board recommendation. National War Labor Board v. Montgomery Ward & Co., 144 F.3d 528 (D. C. Cir. 1944.) Cleveland Electric Illuminating Co., Cleveland, Ohio. 1/3/45 1/15/45 9511.

10 Fed. Reg. 549. § 9, Selective Service Act of 1940 as amended. 1/12/45 1/13/45 None. None. Bingham & Garfield R. R., Utah. 1/24/45 8/29/45 9516.

10 Fed. Reg. 1313. Act of Aug. 29, 1916.

First War Powers Act of 1941.

War Labor Disputes Act. 1/23/45 1/24/45 Property returned upon agreement by parties on wage scale for certain positions. Railway Labor Act Emergency Board recommendation. American Enka Corp., Enka, N. C. 2/18/45 6/6/45 9523.

10 Fed. Reg. 2133. War Labor Disputes Act.

Selective Service Act as amended. 2/7/45 2/18/45 None. (Strike over question of contract interpretation submitted to arbitration.) War Labor Board recommendation. Coal Mines:

Bituminous.

Anthracite.

10 Fed. Reg. 3939.

10 Fed. Reg. 5025.

§ 9, Selective Service Act as amended by the War Labor Disputes Act.

5/24/45*

Wage increase.

Wage increase.

Agreement of parties.

Agreement of parties. Cities Service Refining Corp., Lake Charles, La., plant. 4/17/45 12/23/45 9540.

10 Fed. Reg. 4193. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. (?) 4/17/45 None. (Strike over housing conditions.) None. ^[5] See n. 5, p. 621, supra.6 See n. 6, p. 621, supra.7 See n. 7, p. 621, supra.8 See n. 8, p. 621, supra. YOUNGSTOWN CO. v. SAWYER

FRANKFURTER, J., concurring.

APPENDIX II - Continued.

PLANT OR FACILITY SEIZED DURATION OF SEIZURE EXECUTIVE ORDER STATUTORY AUTHORITY CITED ^[5] DURATION OF STOPPAGE CHANGES IN CONDITIONS OF EMPLOYMENT DURING SEIZURE7 BASIS FOR CHANGES REPORTED LEGAL ACTION8 From To From To6 United Engineering Co., Ltd., San Francisco, Calif. 4/25/45 8/31/45 9542.

10 Fed. Reg. 4591. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. 4/12/45 (?) Union's privileges under contract revoked. War Labor Board recommendation. Cocker Machine & Foundry Co., Gastonia, N. C. 5/20/45 8/31/45 9552.

10 Fed. Reg. 5757. § 9, Selective Service Act of 1940 as amended as amended by the War Labor Disputes Act. (?) 5/20/45 Wage increase; maintenance of membership during period of seizure. War Labor Board recommendation. Chicago, Ill, Motor Carriers. 5/23/45 8/16/45 9554.

10 Fed. Reg. 5981. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act.

Act of Aug. 29, 1916.

6/27/45* Wage increase. War Labor Board recommendation. Gaffney Mfg. Co., Gaffney, S.C.. 5/28/45 9/9/45 9559.

10 Fed. Reg. 6287. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. (?) 5/28/45 Wage increase and maintenance of membership during period of seizure. War Labor Board recommendation. Mary-Leila Cotton Mills, Greensboro, Ga. 6/1/45 8/31/45 9560.

10 Fed. Reg. 6547. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. 4/1/45 6/1/45 Contract extension; maintenance of membership and voluntary check-off during period of seizure. War Labor Board recommendation. Humble Oil & Refining Co., Ingleside, Tex., plant. 6/5/45 9/10/45 9564.

10 Fed. Reg. 6791. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. None. None. Maintenance of membership during period of seizure. War Labor Board recommendation. Eighth Regional War Labor Bd. v. Humble Oil & Refining Co., 145 F.3d 462 (5th Cir. 1945.) Pure Oil Co., Cabin Creek oilfield, Dawes, W. Va., facilities. 6/6/45 9/10/45 9565.

10 Fed. Reg. 6792. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. 5/14/45 6/6/45 Maintenance of membership during period of seizure. War Labor Board recommendation. Scranton Transit Co., Scranton, Pa. 6/14/45 7/8/45 9570.

10 Fed. Reg. 7235. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act.

Act of Aug. 20, 1916.

First War Powers Act of 1941. 5/20/45 6/14/45 None. None. Diamond Alkali Co., Painesville, Ohio. 6/19/45 7/19/45 9574.

10 Fed. Reg. 7435. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. 6/15/45 6/19/45 Property returned upon agreement by parties to wage increase. None. Texas Co., Port Arthur, Tex., plant. 7/1/45 9/10/45 9577A.

10 Fed. Reg. 8090. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. 6/29/45 7/1/45 None. (Strike over racial discrimination.) None.

FRANKFURTER, J., concurring.

APPENDIX II - Continued.

PLANT OR FACILITY SEIZED DURATION OF SEIZURE EXECUTIVE ORDER STATUTORY AUTHORITY CITED ^[5] DURATION OF STOPPAGE CHANGES IN CONDITIONS OF EMPLOYMENT DURING SEIZURE7 BASIS FOR CHANGES REPORTED LEGAL ACTION8 From To From To6 Goodyear Tire & Rubber Co., Akron, Ohio. 7/4/45 8/30/45 9585.

10 Fed. Reg. 8335. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. 6/20/45 7/4/45 Agreement by union to submit future disputes to federal agency. (?). Sinclair Rubber Co., Houston, Tex., butadiene plant 7/19/45 11/19/45 9589A.

10 Fed. Reg. 8949. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. None. None. Change in union security arrangements. War Labor Board recommendation. Springfield Plywood Co., Springfield, Oreg. 7/25/45 8/30/45 9593.

10 Fed. Reg. 9379. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. (?) 7/25/45 None. None. U.S. Rubber Co., Detroit, Mich., facilities 7/31/45 10/10/45 9595.

10 Fed. Reg. 9571. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. 7/14/45 7/31/45 None. None. 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.

10 Fed. Reg. 10957. § 9, Selective Service Act of 1940 as amended by § of the War Labor Disputes Act.

Act of Aug. 29, 1916.

First War Powers Act of 1941. None. None. None. (Jurisdictional strike) Railway Labor Act Emergency Board recommended against change. Petroleum Refineries and Pipelines. (One-half national refining capacity.) 10/4/45 12/12/

2/?/46 9639.

10 Fed. Reg. 12592. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. 9/16/45 10/5/45 Plants returned on agreement of owners to 18 percent wage increase. Ad hoc fact-finding board recommendation. Capital Transit Co., Washington, D.C. 11/21/45 1/7/46 9658.

10 Fed. Reg. 14351. § 9, Selective Service Act of 1940 as amended by § 3 of the War Labor Disputes Act.

Act of Aug. 29, 1916.

11/21/45 Facilities returned when parties agreed to arbitration award on wages. Ad hoc arbitration board award. Great Lakes Towing Co., Cleveland, Ohio. 11/29/45 12/18/46 9661.

10 Fed. Reg. 14591. § 9, Selective Service Act of 1940 as amended by § 3 of the War Labor Disputes Act.

Act of Aug. 29, 1916.

11/1/45 11/29/45 Wage increase. National Wage Stabilization Board recommendation. Meatpacking Industry. 1/24/46 3/12/

5/22/46 9685.

11 Fed. Reg. 989.

11 Fed. Reg. 1337. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. 1/16/46 1/28/46* Plants returned as companies agreed to wage increase recommended by fact-finding board. Ad hoc fact-finding board recommendation approved by National Wage Stabilization Board.

FRANKFURTER, J., concurring.

APPENDIX II - Continued.

PLANT OR FACILITY SEIZED DURATION OF SEIZURE EXECUTIVE ORDER STATUTORY AUTHORITY CITED ^[5] DURATION OF STOPPAGE CHANGES IN CONDITIONS OF EMPLOYMENT DURING SEIZURE7 BASIS FOR CHANGES REPORTED LEGAL ACTION8 From To From To6 New York Harbor Tugboat Companies. 2/5/46 3/3/46 9693.

11 Fed. Reg. 1421. § 9, Selective Service Act of 1940 as amended by § 3 of the War Labor Disputes Act.

Act of Aug. 29, 1916.

First War Powers Act of 1941. 2/4/46 2/13/46* Properties returned after agreement of parties to arbitrate dispute. None. Railroads. 5/17/46 5/26/46 9727.

11 Fed. Reg. 5461. § 9, Selective Service Act of 1940 as amended by § 3 of the War Labor Disputes Act.

Act of Aug. 29, 1916.

First War Powers Act of 1941. 5/23/46 5/25/46* Properties returned after unions agreed to Presidential compromise of wage demands. Railway Labor Act Emergency board recommendation as modified by President. Bituminous Coal Mines. 5/21/46 6/30/47 9728.

11 Fed. Reg. 5593. § 9, Selective Service Act of 1940 as amended by the War Labor Disputes Act. 4/1/

5/30/46* Wage increase, welfare and retirement fund, mine safety provisions, and recognition of UMW as representative of supervisory employees during period of seizure. Contract between union and Secretary of Interior. Union States v. United Mine Workers, 330 U.S. 258; Jones & Laughlin Steel Co. v. UMW, 159 F.3d 18 (D.C. Circ. 1946); Krug v. Fox, 161 F.3d 1013 (4th circ. 1947.) Monongahela Connecting R. Co., Pittsburgh, Pa. 6/14/46 8/12/46 9736.

11 Fed. Reg. 6661. § 9, Selective Service Act of 1940 as amended by § 3 of the War Labor Disputes Act.

Act of Aug. 29, 1916.

First War Powers Act of 1941. 6/10/46 6/14/46 None. 5. Since the expiration of the War Labor Disputes Act Seizures Powers, Dec. 31, 1946. Railroads. 5/10/48 7/9/48 9957.

13 Fed. Reg. 2503. Act of Aug. 29, 1916. None. None. Property returned on agreement of parties to wage increase. Railway Labor Act Emergency Board recommendation as modified. United States v. Brotherhood of Locomotive Engineers, 79 F. Supp. 485 (D.D.C. 1948). Chicago, Rock Island & Pacific R. Co. 7/8/50 5/23/52 10141.

15 Fed. Reg. 4363. Act of Aug. 29, 1916. 6/25/50 7/8/50 Property returned on agreement of parties to wage increase. Railway Labor Act Emergency Board recommendation as modified. Railroads. 8/27/50 5/23/52 10155.

15 Fed. Reg. 5785. Act of Aug. 29, 1916. 12/10/

3/12/52 Agreement reached by carriers and some of the Brotherhoods put into effect. Property returned on agreement of parties to wage increase. Railway Labor Act Emergency Board recommendation as modified.

FRANKFURTER, J., concurring.

APPENDIX II - Continued.

World War II Period ^[4] -- Seizures Unconnected with Labor Disputes.

PLANT OR FACILITY SEIZED DURATION OF SEIZURE EXECUTIVE ORDER STATUTORY AUTHORITY CITED ^[5] REASONS FOR SEIZURE CHANGES INSTITUTED DURING SEIZURE From To Grand River Dam Authority, Oklahoma. 11/19/41 7/31/46 8944.

6 Fed. Reg. 5947. § 16, Federal Power Act. This was a State power project, financed by federal loan and grant. Seizure was based on (1) State default on loan interest; (2) refusal of State legislature to issue bonds to complete financing; (3) failure to meet scheduled completion date in power-short defense area. Federal Works Administrator replaced management and completed the project. Transferred to Department of Interior, Executive Order No. 9373, 8 Fed. Reg. 12001, 8/30/43. Returned pursuant to Act of July 31, 1946, 60 Stat. 743. Brewster Aeronautical Corp., Long Island City, N.Y., Newark, N.J., Johnsville, Pa. 4/18/42 5/20/42 9141.

7 Fed. Reg. 2961. None. (1) Inefficient management; (2) failure to operate at full capacity; (3) failure to maintain delivery schedules on Army and Navy aircraft. (Congressional investigation suggested labor difficulties as well, due to employment of enemy aliens.) New board of directors and officers installed; majority shareholders established 2 1/2 year voting trust in favor of new president. Triumph Explosives, Inc., Maryland and Delaware plants. 10/12/42 2/28/

6/5/43 9254.

7 Fed. Reg. 8333. None. Overpayments (presumably bribes) of $1,400,000 to procurement officers. New board of directors and officers; indictments against former officials. Howarth Pivoted Bearings Co., Philadelphia, Pa. 6/14/43 8/25/45 9351.

8 Fed. Reg. 8097. None. Inefficient management. Designees of Secretary of Navy operated plant for duration of war. Remington Rand, Inc., Southport, N.Y., plant. 11/23/43 9/30/44 9399.

8 Fed. Reg. 16269. § 9, Selective Service Act of 1940 as amended. (1) Norden bombsight parts production of unacceptable quality; (2) deliveries behind schedule. Designees of Secretary of Navy supervised operations for duration of seizure. Los Angeles Shipbuilding & Drydock Corp., Los Angeles, Calif. 12/8/43 8/25/45 9400.

8 Fed. Reg. 16641. § 9, Selective Service Act of 1940 as amended. (1) Excessive costs; (2) production behind schedule. Operated by contractor (Todd Shipyard Co.) for duration of war. York Safe & Lock Co., York, Pa. 1/23/44 3/15/45 9416.

9 Fed. Reg. 936. § 9, Selective Service Act of 1940 as amended. (1) Inefficient management; (2) deliveries behind schedule. Designees of Secretary of Navy operated company for duration of war, except for a portion which was condemned and transferred to Blaw-Knox Co. Lord Mfg. Co., Erie, Pa. ^[11] 10/24/44 8/25/45 9493.

9 Fed. Reg. 12860. Tit. VIII, Revenue Act of 1943.

§ 9, Selective Service Act of 1940 as amended. Refusal to deliver items at "fair and reasonable prices" fixed by the Secretary of the Navy in contract renegotiation. Designees of Secretary of Navy operated company for duration of war.

Notes

1. The power to seize plants under the War Labor Disputes Act ended with the termination of hostilities, proclaimed on Dec. 31, 1946, prior to the incoming of the Eightieth Congress; and the power to operate previously seized plants ended on June 30, 1947, only a week after the enactment of the Labor Management Relations Act over the President's veto. 57 Stat. 163, 165, 50 U.S.C.App. (1946 ed.) § 1503, 50 U.S.C.A.Appendix, § 1503. See 2 Legislative History of the Labor Management Relations Act, 1947 (published by National Labor Relations Board, 1948), 1145, 1519, 1626.
2. Some of the more directly relevant statements are the following: 'In most instances the force of public opinion should make itself sufficiently felt in this 80-day period to bring about a peaceful termination of the controversy. Should this expectation fail, the bill provides for the President laying the matter before Congress for whatever legislation seems necessary to preserve the health and safety of the Nation in the crisis.' Senate Report No. 105, 80th Cong., 1st Sess. 15.
3. 93 Cong.Rec. 3637-3645.
4. 93 Cong.Rec. 3835-3836.
5. See n. 5, p. 621, supra. 6 See n. 6, p. 621, supra. 7 See n. 7, p. 621, supra. 8 See n. 8, p. 621, supra.
6. Clearly the President's message of April 9 and his further letter to the President of the Senate on April 21 do not satisfy this requirement. Cong.Rec., April 9, 1952, pp. 3962-3963; id., April 21, 1952, p. 4192.
7. 64 Stat. 798 et seq., 65 Stat. 131 et seq., 50 U.S.C.App. § 2061 et seq., 50 U.S.C.A.Appendix, § 2061 et seq.
8. §§ 501, 502, 64 Stat. 798, 812, 50 U.S.C.App. §§ 2121, 2122, 50 U.S.C.A.Appendix, §§ 2121, 2122.
10. How widely this doctrine espoused by the President's counsel departs from the early view of presidential power is shown by a comparison. President Jefferson, without authority from Congress, sent the American Fleet into the Mediterranean, where it engaged in a naval battle with the Tripolitan fleet. He sent a message to Congress on December 8, 1801, in which he said:
11. U.S.Const., Art. I, § 8, cl. 15.