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to the contrary, that it authorized condemnation of land for command facilities. But if your intention prevailed, we would have no real problem.
Senator CAPEHART. Would an existing commercial airport be called commercial facilities?
Mr. SCANLAN. Yes.
Senator CAPEHART. A factory certainly is a facility, and it sits on land. You certainly could not take the factory without taking the land.
It seems to me all you have to do is add the word "land." I think that was the intention of the committee.
The CHAIRMAN. I agree with the Senator.
Senator BRICKER. Any other interpretation is a very narrow and wrong interpretation. I do not want to give complete power to the Government when requisition will take care of it.
The CHAIRMAN. I am in agreement with you. It was my thought it was included, but that is the interpretation. I think some time when we have the proper witnesses in here that we ought to have this defined. I have been talking about this in connection with a plant around Fort Jackson, and they say they have no authority to take the land.
Senator CAPE ART. How did you acquire the land on which the South Carolina atomic plant is being constructed?
The CHAIRMAN. They have not acquired it.
Let me mention this: Mr. Barnes talked to me about that. He is in charge of that, and he said it is very unsatisfactory, but there is nothing they could do. He made certain recommendations, and he tells me that the Government would not agree to them. So that is all mixed up. I think we ought to get Mr. Banes down here.
I think, Mr. Small, that this subject is completely mixed up. In my own State people are coming to me and telling me this and that, and Mr. Banes himself told me that.
Senator CAPEHART. My position is that the present act gives you the right to condeme land.
Mr. SMALL. Not land alone. The land and personalty on the land needed for command facilities.
Senator CAPEHART. What do you mean by command facilities?
Mr. SMALL. As opposed to industrial facilities. The use of a training base is not an industrial facility, which is the interpretation placed upon the act as presently written—the authority as presently written.
Senator BRICKER. Would the extension of the 1917 act to cover the Navy instead of just the Army and Air Force meet your objections?
Mr. SMALL. I do not think so. I would have to turn to the lawyers on that, but my feeling is that that process is too slow.
Senator BRICKER. Under that act you have the power to take over immediately.
Mr. SCANLAN. No. That is not the point. What you suggest as a solution for the problem would bring the Navy up to the level of the Air Force and the Army, as far as the statute is concerned, but the statute would still be deficient in one essential respect. Immediate possession is not granted by the terms of that statute unless during
war or the imminence of war. It is fixed by a court order, and I think you know in that case there may be a delay of 3 to 6 or 8 months, and there could be a situation where a comman facility was needed to establish a camp. However, it would be a good thing to get that straightened out, so that the Navy as well as the Army and Air Force would be entitled to use the 1917 statute.
Senator BRICKER. What you would have to do is transfer such authority to the Department of Defense rather than to the two segments of the defense program. If that were done and the word "land" were included in the requisition statute, is there anything further you would need then?
Mr. SMALL. We would want certainly in this thing a reference to command facilities.
Senator BRICKER. But would that cover it?
Mr. SCANLAN. There would be a doubt about that. Secondly, the requisition section, of course, has some findings in there which the Congress put in to make sure that the requisition of a man's factory, for instance, would be only a last resort. These required findings might be very difficult to make in certain situations. I certainly would not want to give a flat answer as to whether madification of the requisitioning section would be equal to the condemnation authority which we seek here. I think it would not. I think that the cleanest way to do it would be to do as the Congress did in the second title II of the Second War Powers Act.
Senator BRICKER. That would give the Government power permanently to take over facilities and to requisition them for war purposes.
Mr. SCANLAN. National defense purposes. That is right.
Senator SCHOEPPEL. Did this grow out of any specific instance? Let us say, for instance, the Wichita Airport?
Mr. SCANLAN. I do not know whether the Navy had in mind the Wichita Airport, but the Navy had a number of cases, such as Oceania. I believe we could get you some of the cases. It was thought this problem would arise as it did back in World War II, which called for title II of the Second War Powers Act, and which made condemnation apply, and which was a speedier process.
There is no attempt to cut away the judicial procedure. You would still have to enforce whatever right you had through the courts. Even though the authority asked for would cover the right to possess, you would still have to go to the court, just like you would in bringing an action of ejectment.
So there is no purpose behind this condemnation amendment which would cut away that fundamental judicial procedure. The purpose is, as the chairman said, to clear up the 1917 act and remove any doubt about that and, secondly, to remove any doubt from this act about command installations and the right to acquire property by condemnation for command facilities. It is because of those two fundamental doubts that we felt required to come here, and ask for this amendment.
It is one amendment in whose drafting the Department of Defense participated thoroughly, and it is one it needs.
Senator BRICKER. The only thing left for judicial interpretation would be that question Senator Dirksen raised awhile ago in regard to the price. That is the only thing that would be left to the courts.
The CHAIRMAN. I think the thing for you to do is for you to get those cases, and if there is no objection, they will be put in the record.
Senator BRICKER. And set out what your present needs and difficulties are, and how the power was used in the Second World War, and the instances wherein it was used. The CHAIRMAN. How many cases do you
had? Mr. SCANLAN. I do not think too many, Senator. Mr. SMALL. Yet. Not too many yet, but we expect more.
The CHAIRMAN. But you have specific ones, and in your judgment there has been a hardship imposed by you not being able to take them over?
Mr. SCANLAN. Yes, and as Senator Bricker mentioned, the World . War II experience might high light the experience in many cases.
The CHAIRMAN. When can you get that?
The CHAIRMAN. Send it down tomorrow, and we will print it in
CONDEMNATION OF LAND In the amendment contained in section 202 we are requesting the same authority which the Government possessed under title II of the Second War Powers Act approved March 27, 1942. We require the authority in connection with our physical build-up of command, training, and operational facilities as distinquished from production facilities. The authority already exists in the present statute to acquire real property by requisition if such property comprises 'facilities necessary for the manufacturing, servicing, or operation of equipment, supplies or component parts" needed for national defense.
The four significant elements of section 202 are (1) right to acquire temporary use of real property ; (2) right to acquire any personal property located on the real property acquired or used therewith ; (3) right to take immediate possession upon the filing of a condemnation petition; and (4) right to occupy, use, and improve property acquired prior to approval of title by the Attorney General.
Aside from the requisition authority in relation to production facilities, the present authority exists in the military departments.
ACT OF AUGUST 1, 1888 Under the act of August 1, 1888, as amended (10. U. S. C. 257), the head of an agency, when authorized to procure real estate for public use, may proceed by condemnation proceedings in a court' of competent jurisdiction to acquire the property. Under this statute possession is granted upon conclusion of litigation and after the price is fixed. Additional authority is provided under the act of February 26, 1931 (40 U. S. C. 258 (a) ), to acquire title upon a declaration of taking and deposit of estimated just compensation. Possession is fixed by order of the court prior to the determination of compensation and subsequent to the fixing of title. The reasons why these two statutes do not provide sufficient authority are
(1) They do not permit possession to be taken of condemned property until formal order of the court entered after litigation. Long delays are usually typical in exercising the condemnation authority under these statutes.
(2) These statutes do not authorize condemnation for the temporary use of property. Since the need for temporary rather than permanent use is often present, the statutes to that extent are insufficient.
It must be remembered that in an emergency program, the military departments receive their authority to construct early in the planning stages. To achieve the objectives of the program as quickly as possible, land clearance, actual construction, and land acquisition must go forward simultaneously; the customary peacetime technique of authorization, site selection, survey, title search, appraisal, condemnation proceeding or purchase, opinion of the Attorney General, payment of award and possession, and then, entry on the site by the con
tractor and the beginning of construction cannot be followed if the new establishment is to be used before the emergency passes.
Under the Declaration of Taking Act an accurate land survey and map must be available. This is necessary since the Government is bound by the declaration of taking and title to the described area and all interests therein irrevocably are vested unless the owner thereof consents to dismissal. The acquiring authority must deposit in court an estimate of just compensation on a tract by tract basis. This requires the procurement of appraisals, the possible procuring of supplementary information and the recommendation to the Secretary of estimated amounts for deposit. The parties in interest and the extent of their holdings must be definitely known since the deposits are allocated for their use by withdrawal from the registry of the court in advance of the final determination of compensation. In a like manner, this requires the procuring of title services, preparation of certificates or abstracts, and review. It may be observed at this point that both the appraiser and the title searcher are seriously handicapped and delayed unless an accurate survey of the site, tract by tract, delineating the individual ownerships, is available; this survey is distinct from any overall perimeter which constitutes only the external boundary of the site to be acquired.
The necessary delays entailed in attempts to operate under the Declaration of Taking Act, as prescribed above, arose early in World War II. For that reason, Congress enacted title II of the Second War Powers Act. Operating under this act the Army and Navy, during the last war, were able to expedite the acquisition and development of command facilities, training sites, air fields, etc., which were essential to the military build-up of those days. Anticipating the heavy public works program already authorized by Congress similar authority is needed during the present national emergency. Operating under such authority, upon authorization a site would be selected in consultation with an appraiser who would give his flash estimate of the cost of the entire area, the property roughly identified by a general perimeter (i. e., on the north by a highway, on the west by railroad right-of-way, on the south by the property of John Smith, and on the east by the present Government activity being expanded), a record owner search made to determine necessary parties defendant, the petition filed based on such data, and the court petitioned to award possession,
ACT OF JULY 2, 1917
Under the act of July 2, 1917, as amended, the Secretaries of the Army and the Air Force may cause proceedings to be instituted for condemnation of any land, temporary use thereof, or other interest therein or right pertaining thereto needed for fortification camps and construction of plants for production of munitions of war and in time of war or imminence thereof, immediate possession may be taken upon the filing of a petition for condemnation. This statute is deficient in two respects:
(1) The authority granted thereunder can only be exercised during time of war or imminence thereof. This is a finding which courts would be reluctant to make in every circumstance without a formal declaration of war being in effeet, which, of course, is not the case at present.
(2) By a statutory fluke the Department of the Navy could not utilize the authority granted by the 1917 act. The authority was originally granted to the Secretary of War and extended to the Department of Air Force by transfer order under the National Security Act of 1947, as amended. It still does not reside in the Department of the Navy which, of course, needs it equally as much as the other military departments.
During the hearing on the condemnation amendment proposed to be added to the Defense Production Act, several of the Senators on the Senate Banking and Currency Committee suggested that the 1917 act could be amended to take care of its present deficiencies and that by amending this act the Department of Defense would have sufficient condemnation authority to meet present mobilization demands. With reference to this suggestion, it is our opinion that the 1917 act could be amended in two respects which would strengthen it perceptibly. In the first place, by amending the act to vest condemnation authority thereunder in the Secretary of Defense, with the power to redelegate it to the Secretaries of the military departments he present situation could be remedied and the Department of Navy would then share equally with the Departments of Army and Air Force condemnation authority under the act which is not the case at the present time. Secondly, the language
"during national emergency declared by the Congress or the President" could be added to the present proviso clause which limits at present the right of immediate possession upon the filing of a petition for condemnation to property which is acquired “in time of war, or the imminence thereof." If the 1917 statute were amended in these two particulars more expeditious actions could be taken by the military departments in condemning property needed for the national defense.
Mr. SMALL. Shall I continue?
Mr. SMALL. There are two important changes which the proposed amendments to the Defense Production Act would make in the present section 303, which now provides authority for the expansion of productive capacity and supply. The first is the deletion of the word "raw" which now precedes the word “materials” in line 3 of the present section 303 (a) of the act. The object of this is to permit the authority now given for purchase of, or commitments to purchase, metals, minerals, and other raw materials to be utilized in certain cases with reference to materials generally including end items.
Under the presently existing authority to enter into long-term purchase contracts, the Government has been able to agree to purchase specified amounts of producers' output for relatively long periods. As the Secretary of the Interior undoubtedly will point out, this authority has been particularly helpful in the case of mining of strategic minerals where marginal high-cost mine shafts can only be brought into production if there is an assurance of a guaranteed purchase contract extending over a considerable period of time.
Since military items in general, and the production lines which turn out these items, are made from metals, it is obvious that in this period of industrial and military build-up, that the availability of metals in a good measure determines the tempo of our mobilization effort. The guaranteed purchase contract authority has been of extreme importance in raising domestic production of needed minerals and metals. It should be made applicable for use when necessary to secure increased production in areas of critical importance, particularly those such as tungsten, cobalt, and manganese. In the field of other materials, particularly end products, this device may be necessary, for example, for pool orders on machine tools and some types of electronics equipment. Government pool orders provide a means for aiding production and distribution of scarce items. Such pool orders are essential if we are to complete on time the tremendous job of tooling up for our military production schedules.
A second major addition to the present authority is the creation of a new section 303 (c). By the terms of this proposed section the President could make provision for subsidy payments on domestically produced materials, both raw materials and manufactured end items, in the meaning of the term under this act.
Senator CAPEHART. The only change you have made here is the deletion of the word "raw."
Mr. SMALL. Right.
Senator CAPEHART. And these necessary paragraphs have to do with that?
Mr. SMALL. That is right.
Senator CAPEHART. You want to eliminate the word "raw" so as to include end products. It is not quite clear to me how end products apply to this particular section.