The United States, by treaty, may take from its citizens property rights against foreign nations,216 and exonerate such foreign nations from liability for claims of American nationals.2

217

Where expropriation is for public use it would seem that the United States, by treaty, might acquire the right to expropriate property in foreign countries, whether in wartime or not.218 In such event it is difficult to find any constitutional objection to the taking of such property, whether realty or personalty, even though the property in question belongs to American nationals, since the right to take property of this sort would be based upon the nature of the United States as a sovereign power exercising a right according to international law granted by a foreign state, the law of which permitted expropriation.

219

5. Implied Powers Deduced From Combination of Expressly Granted Powers As the power of Congress over many of the fields in which it has exercised the power of eminent domain is deduced, not from one, but from a combination of many of its express powers,220 it would be misleading to attempt to attribute authority for instances of Federal condemnation to a single granted power. Where several expressly granted powers are involved an attempt is usually made to give a broad inclusive name to the general power actually exercised and to refer to the various express grants of power upon which the general power may be rested. The mere fact that a given exercise of eminent domain is thus referred to certain granted powers is no indication that it may not also be supported by some other power or combination of powers.

Because the continued existence of the United States is essential to the performance of its constitutional functions, acts having a close enough connection with the preservation of the Nation may be regarded as authorized by any and all of the powers granted by the Constitution.221 A reasonable field for the application of the doctrine, it has been held, is the effort which every sovereign must make to hold the loyalty and obedience of the people in times of stress by stimulating a feeling of pride in the Nation's past achievements and present greatness. Condemnation of sites and buildings where great events in the national history have taken place in order to establish them as centers of national historic interest is the natural means of exerting this effort and may constitutionally be done,222 even, it would seem, if the site has no connection with warfare.223 Congress has sought to

218 Meade v. United States, 2 Ct. Cls. 224 (1866) aff'd., 9 Wall. 691 (1869)-debt owed citizens by Spain. 217 Meade v. United States, supra, footnote 216. The Louisiana Purchase is a landmark instance. See Act of November 10, 1803, 2 Stat. 247.

218 See footnote 529 below, with accompanying text.

219 Expropriation, of course, might be done through the medium of the foreign_state. By agreement between the United States and France in 1927, France has acquired sites for monuments to be erected in France by the American Battle Monuments Commission, see Treaty series No. 757.

220 Norman v. Baltimore & O. R. Co., 294 U. S. 240, 303 (1935); United States v. Gettysburg Electric R. Co., 160 U. S. 668, 681 (1896); Juilliard v. Greenman, 110 U. S. 421, 439 (1884): The Legal Tender cases, 12 Wall. 457, 534 (1872).

221 United States v. Gettysburg Electric R. Co., 160 U. S. 668, 681 (1896); The Legal Tender Cases, 12 Wall. 457 (1872); Henderson v. Kimmel, 47 F. Supp. 635 (1942) (On Emergency Price Control Act).

222 United States v. Gettysburg Electric R. Co., 160 U. S. 668, 681 (1896). (This case may also be rested upon the war power.) Barnidge v. United States, 101 F. 2d 295 (C. C. A. 8. 1939).

223 Barnidge v. United States, 101 F. 2d 295 (C. C. A. 8, 1939); Opinion of Justices, 297 Mass. 567, 8 N. E. 2d 753 (1937).

do this in numerous acts, of which the Historic Sites Act 224 is the most important.

C. Limitations on Authority to Expropriate for War Purposes

1. Constitutional Limitations

a. Just Compensation

Private property shall not be taken for public use without just compensation.225 The application of this limitation to expropriation for war purposes is discussed at length in another part of this manual.2

b. Due Process

226

No person shall be deprived of life, liberty or property without due process of law. 227

Certain broad but vague fundamental relatively immutable principles of right and justice, which are familiar in common law history as "due process of law" or its equivalent "the law of the land," are by the due process clause embodied in the Constitution.228 The very general language of "due process of law" is in itself too vague,229 however, to afford direct and exact guidance in detailed application. Judicial experience has distinguished two distinct aspects of due process, procedural and substantive.230

Procedural due process is process required to assure the traditional essentials of fairness in administrative and judicial proceedings. It includes, broadly speaking, notice, opportunity to be heard, procedure consistent with the essentials of a fair trial, and that the tribunal shall act upon evidence and not arbitrarily.231 In condemnation proceedings, accordingly, there must be provision for judicial determination of such questions as validity of delegation of authority to the condemnor, existence of a public use 233 and amount of compensation.234 Although no notice of the proceedings is required in advance of a taking, reasonable notice, and opportunity to be heard on the

236

224 16 U. S. C. A. secs. 461-467, 49 Stat. 666, held constitutional in Barnidge v. United States, 101 F. 2d 295 (C. C. A. 8, 1939); Opinion of the Justices, 297 Mass. 567, 8 N. E. 2d 753 (1937); Cf. Roe v. Kansas, 278 U. S. 191 (1920).

225 Quoted from the fifth amendment.

228 See footnotes 689-826 below, with accompanying text.

227 Quoted from the fifth amendment.

*

228 Corwin, The "Higher Law" Background of American Constitutional Law (1928-29), 42 Harv. L. Rev. 149 and 365; Plucknett, Bonham's Case and Judicial Review (1926), 40 Harv. L. Rev. 30. The fundamental problem here involved is conveniently illustrated by the question: Can any human authority, however exalted, repeal the substance of the Ten Commandments? The sharp contrast is obvious between that viewpoint of right and wrong, justice and injustice, and Hitler's "The Might of the Conqueror alon makes ri ht." See footnote 1 above. See also footnote 244 below. 229 Vernacular expressions of the underlying idea are similarly vague, as for example: "But there are limits * ** dérived * * ** from the traditions of fair play * * must not outrage decency * Legislatures Frankfurter, Mr. Justice Holmes and the Constitution (1927), 41 Harv. L. Rev. 121, at p. 154. Divergent appraisals of Justice Holmes are cited in Kennedy, Holmes-Pollock Letters (1942), 11 Fordham L. Rev. 242.

*

230 Washington v. Fairchild, 224 U. S. 510, 524 (1912); C. B. & Q. R. R. Co. v. Chicago, 166 U. S. 226 (1896).

231 Railroad Com. of Calif. v. Pacific G. & E. Co., 302 U. S. 388 (1938); Morgan v. U. S., 304 U. S. 1 (1938); Betts v. Brady, 316 U. S. 455 (1942).

232 Georgia v. Chattanooga, 264 U. S. 472, 483 (1924).

233 Rindge Co. v. County of Los Angeles, 262 U. S. 700, 765 (1923).

234 See Georgia v. Chattanooga, 264 U. S. 472, 483 (1924).

235 Bragg v. Weaver, 251 U. S. 57, 58 (1919).

236 Roller v. Holly, 176 U. S. 398 (1900) (5 days notice to defendant in Virginia of Texas action to enforce vendor's lien held unreasonable).

597410-44--5

judicial questions must be given all property owners at some stage in the proceedings.237

The details of procedural due process not being adapted to legislative proceedings,288 there need be no provision for judicial determination of purely legislative questions, such as the necessity and expediency of the taking.

239

Due process, in its substantive aspect, however, is applicable also to legislation.240 The framers of the Constitution were not content to take their chances with legislative omnipotence.21 The courts, however, are not authorized by the due process clause in the Constitution to act as a "super-legislature." 242 Within the bounds fixed by the Constitution legislative discretion is committed to the legislative body.243 To what extent, then, does the constitutional limitation of due process qualify legislative exercise of the police power? 244 Because of the great variation in circumstances that question has no one single and definite answer.245 Since the Constitution is not suspended through the advent of war,246 the same sort of question can arise on how far the due process clause qualifies the exercise of the war power. When the constitutionality of a statute is challenged for violation of the due process clause it is for the court to determine in this regard only whether the legislative body had the authority under the Constitution to enact the statute in question. 247 So far as substantive due process is concerned, the Supreme Court has stated 248 that constitutionality

* * *

demands only that the law shall not be unreasonable, arbitrary, or capricious, a that the means selected shall have a real and substantial relation to the orect sought to be attained. It results that a regulation valid for one sort of busins, or in given circumstances, may be invalid for another sort, or for the se business, under other circumstances,240 because the reasonableness of each relation depends upon the relevant facts If the laws passed are seen to have a reasonab e relation to a proper legislative purpose and are neither arbitrary nor discriminatory the requirements of due process are satisfied. * * * With the wisdom of the policy adopted, with the adequacy and practicability of the law enacted to forward it, the courts are both incompetent and unauthorized to deal. Though the court may hold views incon

* * *

237 See North Laramie Land Co. v. Hoffman, 268 U. S. 276, 282, 284 (1925). 2.8 Contrast Nebbia v. New York, 291 U. S. 503, 525, 527-538 (1934) on details of such sultantive due process with the authorities cited in footnote 231 above. See footnote 248 below and accompanying text.

239 North Laramie Land Co. v. Hoffman, 268 U. S. 276, 284 (1925).

240 See, for instance, The Slaughter House Cases, 83 U. S. 36, 21 L. Ed. 394 (1873); Nebbia v. N. Y., 291 U. S. 502 (1934); Sunshine Anthracite Coal Co. v. Adkins, 310 U. s. 381 (1940); Olsen v. Nebraska, 313 U. S. 236 (1941). Contending that historically "due process" relates merely to procedure, see minority concurring opinion in Federal Power Commission v. Natural Gas Pipeline Co., 315 U. Š. 575 (1942).

241 Corwin, "The Higher Law" Background of American Constitutional Law (19281929), 42 Harv. L. Rev. 149 and 365; Plucknett, Bonham's Case and Judicial Review (1926), 40 Harv. L. Rev. 30; Corwin, Marbury v. Madison and the Doctrine of Judicial Review (1914), 12 Mich. L. Rev. 538.

242 See footnote 240.

213 Carpenters and Joiners Union v. Ritter's Cafe, 315 U. S. 722 (1942), citing earlier authorities.

244 Both sovereignty underlying police power and relatively immutable principles of right and justice embodied in due process involve concepts which have no definite limits. Pitting one against the other suggests the dilemma of the irresistible force meeting the immovable body. See also footnote 228 above.

245 See footnote 248 below, and accompanying text.

246 See footnote 37 above. In Henderson v. Kimmel, 47 F. Supp. 635 (1942), the rentcontrol provisions of the Emergency Price Control Act of 1942 (50 U. S. C. A. App. sec. 902, 56 Stat. 24) were held constitutional, in an opinion citing authorities for a very broad interrretation of the constitutional war power.

247 United States v. Darby, 312 U. S. 100 (1941). See also footnotes 831 and 840 below. 248 Nebbia v. U. S., 291 U. S. 502, 525, 537, 538 (1934).

249 This aspect is discussed at length in Euclid v. Ambler, 272 U. S. 365 (1926); West Coast Hotel v. Parrish, 300 U. S. 379 (1937).

sistent with the wisdom of the law, it may not be annulled unless palpably in excess of legislative power.

In all but the most extreme situations,250 such analysis 251 now leads the court to uphold the constitutionality of statutes on the score of due process whatever it may think of their wisdom.252

c. Two-year Limitation on Appropriations for Support of Armies

253

The Constitution imposes a special condition upon the power of Congress to raise and support armies by providing that no appropriation of money "for that use" shall be for a longer period than 2 years.2 The limitation, however, is not thus included in connection with the power to declare war,254 the power to provide and maintain a navy,255 the power to tax and spend for national defense 256 and the power to provide for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.257 Reasonably implied as incident to these expressly granted powers, is the power to provide and use the requisite war materials, equipment, and training facilities,258 to which, accordingly, the 2-year limitation on appropriation for "support of armies" is not applicable.259

d. Necessity of Appropriation

The constitution provides that no money shall be drawn from the Treasury but in consequence of appropriations made by law. 260

In condemnation proceedings, except in cases where a declaration of taking is filed, the title does not vest in the condemnor until the compensation awarded is actually paid.261 It has been stated in certain cases that possession may not be taken until reasonably certain. and adequate provision for just compensation is made.262 Under the

250 See Skinner v. Oklahoma, 316 U. S. 535 (1942) (State statute for sterilization of habitual criminals); West Virginia State Board of Education v. Barnette, 319 U. S. 624 (1943) (State statute requiring compulsory salute to the flag in public schools). 251 Much will depend on which among the available criteria of reasonableness is by the court deemed appropriate for the occasion. See Pound, the New Feudal System (1930), 19 Ky. Law Jour. 1, reprinted in Selected Essays on Constitutional Law, vol. 2 at p. 85. See also Pound, Theory of Judicial Decision (1923), 36 Harv. L. Rev. 641, 802, 940; Cardozo, The Nature of the Judicial Process (1921); Id., The Growth of the Law (1924); Id., Paradoxes of Legal Science (1930). See also Kales, "Due Process," The Inarticulate Major Premise, and the Adamson Act (1917), 26 Yale Law Jour. 519. See, further, footnotes 834, 836, 861, and 862 below.

On including in the record before the Court relevant facts to show that the legislative body reasonably could regard the statute in question as reasonable, whatever the court may think of its wisdom, see Frankfurter, Hours of Labor and Realism in Constitutional Law (1916), 29 Harv. L. Rev. 353; Id., Mr. Justice Brandeis and the Constitution (1931), 45 Harv. L. Rev. 43.

252 United States v. Darby, 312 U. S. 100 (1941); Olsen v. Nebraska, 313 U. S. 236 (1941); Carpenters and Joiners Union v. Ritter's Cafe, 315 U. S. 722 (1942).

253 Art. I, sec. 8, cl. 12.

254 Art. I, sec. 8, cl. 11. 255 Art. I, sec. 8, cl. 13. 256 Art. I, sec. 8, cl. 1.

257 Art. I, sec. 8, cl. 17.

258 Art. 1, sec. 8, cl. 18 (to make all laws necessary and proper, etc.); United States v. Rhodes, 27 Fed. Cas. 785. Case No. 16151 (1866) (dictum at p. 792).

259 25 Op. A. G. 105, 108 (1904).

260 Art. I, sec. 9, cl. 7. What is forbidden in the absence of covering appropriation is not the incurring of obligations by the United States, Cincinnati Soap Co. v. United States, 301 U. S. 308 (1937); Mitchell v. United States, 18 Ct. Cls. 281 (1883); Collins v. United States, 15 Ct. Cls. 35 (1879); but drawing of money out of the Treasury, Hart v. United States, 118 U. S. 62 (1886) Knote v. United States, 95 U. S. 149 (1877); Reeside v. Walker, 11 How. 272, 291 (1850).

261 Barnige v. United States, 101 F. 2d 295 (1939); Hanson Lumber Co. v. United States, 261 U. S. 581 (1923).

262 Hanson Lumber Co. v. United States, 261 U. S. 581 (1923); Cherokee Nation v. Southern Kansas Ry., 135 U. S. 641 (1890); Backus v. Fort Street Union Depot Co., 169 U. S. 557 (1898); Miller v. United States, 57 F. 2d 424 (1932). As to adequate provision for compensation for advance possession whether or not the proceeding is later abandoned. see Commercial Station Post Office v. United States, 48 F. 2d 183, 185-186 (1931). Cf.

before-mentioned constitutional provision, accordingly, absence or insufficiency of such appropriations may prevent the vesting of title to the property through condemnation proceedings.263

Absence or insufficiency of an appropriation to cover a condemnation award, however, does not in and of itself impair authority otherwise conferred to proceed by condemnation. A condemnation judgment, where no declaration of taking has been filed, in effect gives the condemnor an option, either of taking at the amount awarded or of abandonment.265 If the amount awarded exceeds the available appropriation, the funds necessary may be subsequently appropriated or otherwise obtained if such alternative is preferred to abandonment.20

266

So far as the time for actual payment is concerned, the just-compensation clause of the Constitution is satisfied when the public faith and credit are pledged to a reasonably prompt ascertainment and payment and there is adequate provision for enforcing the pledge.267 Such a pledge of the public faith and credit of the United States, judicially regarded as in itself an adequate provision for its enforcement,268 results from a taking of the title to the property at the outset or before completion of the condemnation proceedings, through compliance with the Declaration of Taking Act.269 It also results from such actual appropriation of the property to the public use as to give rise, under the Tucker Act, to a cause of action for its value."

270

e. Seventh Amendment-Jury Trial

The seventh amendment embraces a two-fold requirement: first, in suits at common law, when the value in controversy is in excess of $20, a right of trial by jury must be preserved; and second, no court of the United States may reexamine a fact once tried by a jury except according to the rules of the common law.27

This amendment was not intended to create new rights, but only to preserve those already established under the English common law.272

Moody v. Wickard, 136 F. 2d 801, 803–804 (1943). As to what is adequate provision see footnote 268 below, with accompanying text.

263 Miller v. United States, 57 F. 2d 424 (1932).

264 Barnidge v. United States, 101 F. 2d 295 (1939); Hanson Lumber Co. v. United States, 261 U. S. 581 (1923); United States v. Gettysburg Elec. Ry. 160 U. S. 668 (1896); Shoemaker v. United States, 147 U. S. 282 (1893).

265 Barnidge v. United States, 101 F. 2d 295 (1939); Miller v. United States, 57 F. 2d 424 (1932); Danforth v. United States, 308 U. S. 271 (1939), at p. 284.

266 United States v. Gettysburg Elec. Ry., 160 U. S. 668 (1896); Miller v. United States, 57 F. 2d 424 (1932) (Rejection by Congress of a bill for additional appropriation required to pay the award held under the circumstances to amount to abandonment).

267 Joslin Co. v. Providence, 262 U. S. 668 (1923); United States v. McIntosh, 2 F. Supp. 244 (1932).

268 United States v. Stein, 48 F. 2d 626 (1931): Potomac Elec. Power Co. v. United States, 85 F. 2d 243 (1926); Hessel v. A. Smith & Co., 15 F. Supp. 953 (1936); Lee v. United States, 58 F. 2d 879 (1932).

263 Hessel v. A. Smith & Co., 15 F. Supp. 953 (1936); Potomac Elec. Power Co. v. United States, 85 F. 2d 243 (1936); Lee v. United States, 58 F. 2d 879 (1932). As to taking of advance possession without utilizing the procedure of the Declaration of Taking Act. see in this regard Commercial Station Post Office v. United States, 48 F. 2d 183, 185-186 (1931); Moody v. Wickard, 136 F. 2d 801, 803-804 (1943).

270 Hurley v. Kincaid, 85 U. S. 95 (1972). To the same effect see Campbell v. United States, 266 U. S 368 (1924): United States v. Lynah, 188 U. S. 445, 465 (1903) (rested directly on the fifth amendment for just compensation); Moody v. Wickard, 136 F. 2d 801, 802-804 (1943) (dictum).

271 That the second clause of the seventh amendment does not invalidate the so-called "remittitur" practice is well settled. Dimick v. Schied, 293 U. S. 474 (1935); Baltimore & Carolina Line, Inc. v. Redman, 295 U. S. 654 (1935). As to "additur," see United States v. Kennesaw Mountain Battlefield Assn., 99 F. 2d 830 (1938); Dimick v. Schied, 293 U. S. 474 (1925).

272 Baltimore and Carolina Line, Inc. v. Redman, 295 U. S. 654 (1935); Dimick v. Schied, 293 U. S. 474 (1935): Er parte Quirin, 317 U. S. 1, 39-40 (1942); Galloway v. United States, 317 U. S. 622 (1943).