Page images
PDF
EPUB

VINSON, C. J., dissenting.

343 U.S.

40

ratified by the legislature. Sponsors of the bill declared that its purpose was only to confirm the power which the President already possessed.38 Opponents insisted a statute authorizing seizure was unnecessary and might even be construed as limiting existing Presidential powers."

Other seizures of private property occurred during the War Between the States, just as they had occurred during previous wars. In United States v. Russell, 13 Wall. 623 (1872), three river steamers were seized by Army Quartermasters on the ground of “imperative military necessity.” This Court affirmed an award of compensation, stating:

"Extraordinary and unforeseen occasions arise, however, beyond all doubt, in cases of extreme necessity in time of war or of immediate and impending public danger, in which private property may be impressed into the public service, or may be seized and appropriated to the public use, or may even be destroyed without the consent of the owner.

“Exigencies of the kind do arise in time of war or impending public danger, but it is the emergency, as was said by a great magistrate, that gives the right,

38 Senator Wade, Cong. Globe, 37th Cong., 2d Sess, 509 (1862); Rep. Blair, id., at 548.

39 Senators Browning, Fessenden, Cowan, Grimes, id., at 510, 512, 516, 520.

40 In 1818, the House Committee on Military Affairs recommended payment of compensation for vessels seized by the Army during the War of 1812. American State Papers, Claims (1834), 649. Mitchell v. Harmony, 13 How. 115, 134 (1852), involving seizure of a wagon train by an Army officer during the Mexican War, noted that such executive seizure was proper in case of emergency, but affirmed a personal judgment against the officer on the ground that no emergency had been found to exist. The judgment was paid by the United States pursuant to Act of Congress. 10 Stat. 727 (1852).

579

VINSON, C. J., dissenting.

and it is clear that the emergency must be shown to exist before the taking can be justified. Such a justification may be shown, and when shown the rule is well settled that the officer taking private property for such a purpose, if the emergency is fully proved, is not a trespasser, and that the government

is bound to make full compensation to the owner." 41 In In re Neagle, 135 U. S. 1 (1890), this Court held that a federal officer had acted in line of duty when he was guarding a Justice of this Court riding circuit. It was conceded that there was no specific statute authorizing the President to assign such a guard. In holding that such a statute was not necessary, the Court broadly stated the question as follows:

"[The President] is enabled to fulfil the duty of his great department, expressed in the phrase that 'he shall take care that the laws be faithfully executed.'

"Is this duty limited to the enforcement of acts of Congress or of treaties of the United States according to their express terms, or does it include the rights, duties and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the gov

ernment under the Constitution ?'' 12 The latter approach was emphatically adopted by the Court.

President Hayes authorized the wide-spread use of federal troops during the Railroad Strike of 1877.43 President Cleveland also used the troops in the Pullman Strike

41 13 Wall., at 627–628. Such a compensable taking was soon distinguished from the noncompensable taking and destruction of property during the extreme exigencies of a military campaign. United States v. Pacific R. Co., 120 U. S. 227 (1887). 42 135 U. S., at 64. Rich, The Presidents and Civil Disorder (1941), 72–86.

43

VINSON, C. J., dissenting.

343 U.S.

of 1895 and his action is of special significance. No statute authorized this action. No call for help had issued from the Governor of Illinois; indeed Governor Altgeld disclaimed the need for supplemental forces. But the President's concern was that federal laws relating to the free flow of interstate commerce and the mails be continuously and faithfully executed without interruption. To further this aim his agents sought and obtained the injunction upheld by this Court in In re Debs, 158 U. S. 564 (1895). The Court scrutinized each of the steps taken by the President to insure execution of the "mass of legislation” dealing with commerce and the mails and gave his conduct full approval. Congress likewise took note of this use of Presidential power to forestall apparent obstacles to the faithful execution of the laws. By separate resolutions, both the Senate and the House commended the Executive's action.45

President Theodore Roosevelt seriously contemplated seizure of Pennsylvania coal mines if a coal shortage necessitated such action. In his autobiography, President Roosevelt expounded the "Stewardship Theory" of Presidential power, stating that “the executive as subject only to the people, and, under the Constitution, bound to serve the people affirmatively in cases where the Constitution does not explicitly forbid him to render the serv

Because the contemplated seizure of the coal mines was based on this theory, then ex-President Taft criticized President Roosevelt in a passage in his book relied upon by the District Court in this case. Taft, Our Chief Magistrate and His Powers (1916), 139–147. In the same book, however, President Taft agreed that

ice." 47

44 Cleveland, The Government in the Chicago Strike of 1894 (1913).

45 26 Cong. Rec. 7281-7284, 7544-7546 (1894).
46 Theodore Roosevelt, Autobiography (1916 ed.), 479-491.
47 Id., at 378.

579

VINSON, C. J., dissenting.

such powers of the President as the duty to "take Care that the Laws be faithfully executed” could not be confined to “express Congressional statutes.” Id., at 88. In re Neagle, supra, and in re Debs, supra, were cited as conforming with Taft's concept of the office, id., at pp. 88–94, as they were later to be cited with approval in his opinion as Chief Justice in Myers v. United States, 272 U. S. 52, 133 (1926).48

In 1909, President Taft was informed that government-owned oil lands were being patented by private parties at such a rate that public oil lands would be depleted in a matter of months. Although Congress had explicitly provided that these lands were open to purchase by United States citizens, 29 Stat. 526 (1897), the President nevertheless ordered the lands withdrawn from sale “[i]n aid of proposed legislation.” In United States v. Midwest Oil Co., 236 U. S. 459 (1915), the President's action was sustained as consistent with executive practice throughout our history. An excellent brief was filed in the case by the Solicitor General, Mr. John W. Davis, together with Assistant Attorney General Knaebel, later Reporter for this Court. In this brief, the situation confronting President Taft was described as "an emergency; there was no time to wait for the action of Congress. The brief then discusses the powers of the President under the Constitution in such a case:

"Ours is a self-sufficient Government within its sphere. (Ex parte Siebold, 100 U. S., 371, 395; in re Debs, 158 U. S., 564, 578.) 'Its means are adequate to its ends' (McCulloch v. Maryland, 4

48 Humphrey's Executor v. United States, 295 U. S. 602, 626 (1935), disapproved expressions in the Myers opinion only to the extent that they related to the President's power to remove members of quasilegislative and quasi-judicial commissions as contrasted with executive employees.

VINSON, C. J., dissenting.

343 U.S.

Wheat., 316, 424), and it is rational to assume that its active forces will be found equal in most things to the emergencies that confront it. While perfect flexibility is not to be expected in a Government of divided powers, and while division of power is one of the principal features of the Constitution, it is the plain duty of those who are called upon to draw the dividing lines to ascertain the essential, recognize the practical, and avoid a slavish formalism which can only serve to ossify the Government and reduce its efficiency without any compensating good. The function of making laws is peculiar to Congress, and the Executive can not exercise that function to any degree. But this is not to say that all of the subjects concerning which laws might be made are perforce removed from the possibility of Executive influence. The Executive may act upon things and upon men in many relations which have not, though they might have, been actually regulated by Congress. In other words, just as there are fields which are peculiar to Congress and fields which are peculiar to the Executive, so there are fields which are common to both, in the sense that the Executive may move within them until they shall have been occupied by legislative action. These are not the fields of legislative prerogative, but fields within which the lawmaking power may enter and dominate whenever it chooses. This situation results from the fact that the President is the active agent, not of Congress, but of the Nation. As such he performs the duties which the Constitution lays upon him immediately, and as such, also, he executes the laws and regulations adopted by Congress. He is the agent of the people of the United States, deriving all his powers from them and responsible directly to them. In no

« PreviousContinue »