case of private donees has at times been regarded as applicable where the United States is donee.407 The further question still remains. however, of which administrative officer, if any, in the instance actually is authorized to manifest acceptance on behalf of the United States, whether affirmatively or by failure to disclaim after notice.408 Accordingly, it has generally been concluded in administrative rulings that gifts to the United States could not become effective unless accepted by or under the authority of an act of Congress.409

Should the case be presented, however, where authority to accept is derived from the President's independent constitutional war power, it would seem that acceptance of unconditional gifts pursuant to such lawful authority would be valid.410 The question in that form is not likely to arise frequently with respect to gifts for war purposes, however, since acceptance by appropriately designated persons of such gifts is already authorized quite broadly in existing statutes.411

E. Condemnation

The general federal condemnation statute provides that whenever any officer of the United States is authorized to procure real estate for public purposes he is authorized to acquire the same for the United States by condemnation proceedings.412 Through this alternative the United States can to a considerable extent protect itself against exorbitant charges which otherwise might result through purchase by negotiation. The United States can also thereby protect itself against flaws in the title of the party in whose control the property is found inasmuch as the taking of property by condemnation operates as a proceeding in rem.414

413

The delay in actual development of the property taken customarily incident to ordinary condemnation proceedings can be avoided if so desired by proceeding under the Declaration of Taking Act.415

A number of special Federal statutes of more limited application provide for condemnation in particular types of situations or even for particular instances. 416

Under Title II of the Second War Powers Act, which provides very broadly for acquisition of property for war purposes, it is provided that the proceedings taken thereunder shall be in accordance with the

407 (1896) 21 Op. A. G. 455.

408 (1939) 39 Op. A. G. 373. Long-established practice on the part of such agencies as the Treasury Department and the Library of Congress to accept unconditional gifts of money or personal property apparently has been ratified through knowledge and acquiescence by Congress even though not directly provided for by statute. Compare 2 U. S. C. A., sec. 160, 43 Stat. 1108; Treadwell v. Putnam, 65 F. 2d 604 (1933); United States v. Moore, 197 Ark, 664, 124 S. W. 2d 807 (1939). See also footnote 460 below, as to ratification of long-established practice.

409 (1939) 39 Op. A. G. 366.

410 The rationalization adduced in (1940) 39 Op. A. G. 484, in support of the President's independent constitutional authority to make exchanges would seem to be equally as apt to support such authority to accept gifts.

411 See footnote 404 above.

412 40 U. S. C. A., sec. 257; 25 Stat. 357. See footnote 504 below, and accompanying Text. As to whether authority to receive gifts is sufficeint for condemnation, see footnote 548 below.

413 Illustrated in Danforth v. United States, 308 U. S. 271 (1939).

414 Duckett & Co., Inc. v. United States, 266 U. S. 199 (1924). See also footnote 413 above.

415 40 U. S. C. A., secs. 258a to 258e; 46 Stat. 1421-1422. See also 40 U. S. C. A. secs. 361-386. 45 Stat. 1415. applicable to the District of Columbia. See footnote 509 below, and accompanying text. For immediate possession and development under the Second War Powers Act see footnote 590 below and accompanying text.

416 See footnotes 540 to 565 below, and accompanying text.

general condemnation act of August 1, 1888, or any other applicable Federal statute.417

F. Requisitions

Requisition means direct appropriation of property by the Government for war purposes without condemnation proceedings.418 Congress has repeatedly authorized requisitioning in wartime or other national emergency.419 Requisitioning is well established under the law of nations.20 In occupied territory requisitioning is often initiated by the military commander in order to provide for the necessities of the army of occupation.421 During the war years 1917-18 requisitioning under congressional authority took place on a large scale even outside the zone of direct military operations.422 Recent legislation similarly authorizes requisitioning on a large scale during the present war.423 The power of the Executive, even without statute, to requisition property in places under military government would seem to be clear.424 Requisitioning in belligerent territory has been exercised either through the civil authorities or by the military officers without such civilian intervention.425

The availability of the Tucker Act providing for the payment of compensation by the United States affords remedial procedure to the property owner where on occasion the Government expropriates property for war purposes without waiting to comply with the usual statutory acquisition requirements.426 However, in this connection it is usually not necessary to invoke the Tucker Act in case of personalty inasmuch as recent emergency and war legislation directly constitutes very broad authority for requisitioning of personal property," and provides that the amount of just compensation shall be ascertained in accordance with the provision for just compensation in the Fifth Amendment to the Constitution of the United States.428

G. Capture, Reprisal, Retortion, and Contribution

427

In former times capture of enemy property was regarded with favor and was very widely practiced.429 The rules of traditionally accepted international law in recent times have greatly circumscribed the confiscation of private property in war operations.430 The statutes

417 Approved March 27, 1942, 50 U. S. C. A. App. sec. 632; 56 Stat. 177. See footnote 590 below with accompanying text.

418 Title passes to the Government upon proper requisitioning, even of realty, if this is intended, United States v. Stein, 48 F. 2d 626 (N. D. Ohio, 1921).

419 A recent such statute is the Act of October 16, 1941 (50 U. S. C. A. App. sec. 721; 55 Stat. 742). See footnotes 644-646 below, with accompanying text.

420 Gregory, Contributions and Requisitions in War (1915), 15 Col. L. Rev. 207. See also footnotes 137 and 335 above, with accompanying text.

421 Oppenheim, International Law, vol. II, 6th ed. (1940, Lauterpacht), sec. 147; Clark, Emergency Legislation Passed Prior to Dec. 1917 (1918), at p. 57, footnote 1, et seq.

422 See Aitchison, War Time Control of American Railways (1940), 26 Va. L. Rev. 847 at pp. 869, et seq. See also footnote 17 above.

423 50 U. S. C. A. App. secs. 711, 712, 54 Stat. 1090; 50 U. S. C. A. App. sec. 721, 55 Stat. 742, 56 Stat. 181. See also footnotes 643-653 below.

424 (1900) 23 Op. A. G. 222, 226–227. See footnotes 134 to 137 above, with accompanyinging text. See also Planters Bank v. Union Bank, 16 Wall 483 (1872).

425 Clark, Emergency Legislation Passed Prior to December 1917 (1918), at p. 57, et seq. 420 Martha H. Alexander v. United States, 39 Ct. Cls. 383 (1904); Fletcher v. Maupin, 129 F. 2d 46 (1942).

427 See footnote 423 above.

428 Title VI of the Second War Powers Act, approved March 27, 1942; 56 Stat. 181, 50 U. S. C. A. App. sec. 636a.

429 See footnote 308 above.

430 See footnotes 309 and 310 above.

432

and executive regulations of the United States in this regard now conform very largely to the traditionally accepted rules of international law. Accordingly, no property can be acquired by the individual soldier or sailor through mere capture as an act of pillage. Enemy public property qualifying as booty on the battlefield can be acquired by capture for the use of the United States. 433 On a larger scale the capture of enemy property at sea under the rules of prize law can result in the acquisition of property on behalf of the United States.434 Unlike captures on land, the property interest in captures at sea is commonly said not to accrue under the prize law until condemnation of the prize by a prize court.435 It has been suggested, however, that a purchaser acquiring title pending an appeal from a prize court does not lose the interest acquired in the vessel upon reversal of the condemnation decree.*

436

Reprisals are acts of retaliation by a belligerent against enemy individuals or property for illegal acts of warfare.437 Reprisals are used only as a last resort for the purpose of enforcing compliance with the recognized rules of civilized warfare. According to the War Regulations promulgated by the United States 439_

*

"Reprisals * * should never be employed by individual soldiers except by direct orders of a commander, and the latter should give such orders only after careful inquiry into the alleged offense. The highest accessible military authority should be consulted unless immediate action is demanded as a matter of military necessity ** Hasty or ill-considered action may subsequently be found to have been wholly unjustified, subjects the responsible officer himself to punishment as for a violation of the laws of war, and may seriously damage his cause. On the other hand, commanding officers must assume responsibility for retaliative measures when an unscrupulous enemy leaves no other recourse against the repetition of barbarous outrages."

Retortion is a term usually applied to retaliation in kind.440

During the World War years, 1914-18, the right of retaliation and reprisal on the sea was claimed by several belligerents.441 Measures

431 Articles of War as appearing in 10 U. S. C. A., secs. 1551 and 1552, 41 Stat. 804; War Department Basic Field Manual, Rules of Land Warfare (1940), pars. 313-340.

The Basic Field Manual, par. 5, speaking of the rules of war, states as follows: "The unwritten rules are binding upon all civilized nations. They will be strictly observed by our forces, subject only to such exceptions as shall have been directed by competent authority by way of legitimate reprisals for illegal conduct of the enemy."

432 Basic Field Manual (see footnote 431 above) par. 334.

433 Basic Field Manual (see fcotnote 431 above) pars. 325-326.

434 "The right of capture acts on the proprietary interest of the thing captured at the time of the capture and is not affected by the secret liens or private engagements of the parties." The Carlos F. Roses, 177 U. S. 655, 666 (1900). Cf. Hudson, Seizures in Land and Naval Warfare Distinguished (1922), 16 Am. J. Int. L. 375. The details of procedure for prize law are codified in 34 U. S. C. A. ch. 20.

435 Lamar, Executor v. Browne, 92 U. S. 187, 195 (1875). The Brig Sally, 37 C. Cls. 74 (1901). But cf. Kennedy, Exemption of Private Property at Sea (1907), 16 Yale L. J. 380, 382, who says that the property of enemy ships and cargo passes upon seizure so that in case of necessity it may be destroyed. The right to forfeiture of an American vessel and cargo used to aid the enemy does not depend on capture, The Caledonian, 4 Wheat. 100, 102 (1819).

436 23 Op. A. G. 29 (1900)-where it is said that only the fund produced by the sale of the vessel is affected. 437 Basic Field Manual (see footnote 431 above), par. 363.

438 Id.

439 Id.

See also Stowell, Military Reprisals and the Sanctions of the Laws of War (1942), 36 Am. J. Int. L. 643. See, further, footnote 355 above and 759 below, with accompanying text.

440 See International Law Situations, Naval War College, (1932) p. 102.

441 International Law Situations, Naval War College (1933), p. 39, et seq. It has been asserted that privateering had its genesis in the law of reprisal, Rodgers, Future International Laws of War (1939), 33 Am. J. Int. L. 440, 443.

442

adopted on this basis often affected neutrals.* Echoes of similar claims have been heard during the present World War.443 Reprisals and retortions are not likely to be employed by the United States as a means of expropriating property, but if the occasion demands it would seem that legal justification for doing so would be available.** Contribution has been described as a form of requisitioning under guise of an assessment upon the conquered territory.445 The right to levy contributions is recognized in international law,446 has been claimed by the United States 447 and has sometimes been used.***

448

H. Exercise of Police or Kindred Power-Forfeiture Property dealt with or used illegally may be forfeited to the United States for violation of law. Such forfeitures have been imposed for violation of customs and internal revenue laws,449 and under some State enforcement laws for violations of the "prohibition" law.450 Forfeiture statutes can impose forfeiture of the property illegally used even if the owner may appear to be innocent and not in collusion with the violator. The most persuasive analysis to support the constitutional validity even of such forfeitures seems to be that the illegal use under the given circumstances is regarded by the legislature as so highly undesirable that the owner under such a statute entrusts his property to another at his peril of incurring forfeiture as a means of precluding evasion by collusion.452

Exercise of what thus amounts to police power to require the forfeiture of property for illegal use was provided for in Civil War legislation, where property of a citizen was used to aid the violation of war measures, even when the owner was personally innocent.453 The same is true of current legislation against violation of regulations or destruction or injury to vessels during a national emergency by persons in charge of vessels in territorial waters of the United States.454

Current legislation dealing with foreign relations and neutrality has provided for the seizure and forfeiture to the United States of war materials and supplies intended for unlawful export.455 On the other hand, it has been said that under current legislation the Alien Property Custodian's operations in taking charge of enemy property within this country do not, in themselves, involve actual forfeiture.456

442 International Law Situations, Naval War College (1930), p. 59, et seq. Such measures were criticized by Yntema, Retaliation and Neutral Rights (1919), 17 Mich. L. Rev. 564.

443 See, for instance, statement by Secretary of State Hull, cited in footnote 354 above. 444 Cf. (1793) 1 Op. A. G. 30.

445 See Gregory, Contributions and Requisition in War (1915), 50 Col. L. Rev. 207. 446 See footnote 138 above.

447 Basic Field Manual (see footnote 431 above), pars 335, 341–342.

448 For instances o fits use in the Civil War, see Glenn, the Army and the Law (1918), p. 120, fn. 43. Cf. 23 Op. A. G. 181 (1900)-Philippine Islands-use of land revenues for local purposes.

49

449 General Motors Acceptance Corp. v. United States, 286 U. S. 49 (1932). To same effect as to vehicles, vessels, and aircraft used for transporting contraband articles. U. S. C. A. secs. 781-782; 53 Stat. 1291.

450 State v. One Pontiac Coach Automobile, 224 N. W. 176 (S. D. 1929).

451 Van Oster v. Kansas, 272 U. S. 465 (1926).

452 Id. at pp. 467 and 468.

453 Miller v. United States, 11 Wall. 268 (1870) at p. 305.

454 50 U. S. C. A., secs. 192, 193; 54 Stat. 79; 55 Stat. 763. Subsequent requisitioning proceedings pursuant to a notice of taking issued by the Maritime Commission under the act of June 6, 1941 is not an "abandonment" of the Government's forfeiture proceedings for violation of these sections. The Villarperosa, 43 F. Supp. 140 (1942); The Pietro Campanella v. The Euro, 47 F. Supp. 347 (1942): The Antoinetta, 49 F. Supp. 148 (1943). 455 22 U. S. C. A., sec. 401; 40 Stat. 223; 46 Stat. 740.

456 Turlington, Vesting Orders under the First War Powers Act (1942), 36 Am. J. Int. L. 460. See also footnotes 317 and 318 above, and 494, 608-610, 780-782 below, with accompanying text.

I. Transfer of Government Property by Legislative or Executive Action

Where the property desired for war purposes is already owned by the United States but is in use for other purposes no acquisition by the United States is in question. Instead, a transfer, if needed, is made from the agency already in control to the agency that is to use the property for war purposes.

457

Under the Constitution, Congress has the power to make all needful rules and regulations respecting the territory or other property belonging to the United States. Accordingly, congressional authorization or ratification is usually regarded as necessary 158 for the interagency transfers desired.

The process of making transfers, however, usually is left to Executive action within the limits of the statutory authority conferred. Conspicuous in this respect has been the legislation authorizing the President to withdraw public lands from settlement and to reserve the same for water power sites, irrigation, classification of lands, or other public purposes.459

Where a long standing executive practice of setting aside Indian reservations from lands in the public domain through mere Executive order was known to Congress, was acquiesced in for a long period, and was never repudiated in subsequent legislation, it was even held that through acquiescence legislative ratification of that Executive practice had resulted, although Executive authority so to act may in the first instance have been doubtful."

460

Various statutes have to greater or less extent authorized interagency transfers of publicly owned property by Executive action.461 Several of these statutes authorize interagency transfers particularly for war purposes. 462 Illustrations of interagency transfers under stat

457 Constitution, art. IV, sec. 3, cl. 2, quoted in footnote 395 above.

458 United States v. Fitzgerald, 15 Pet. 407 (1841), at p. 421; Utah Power & Light Co. v. United States, 243 U. S. 389 (1917) at p. 404; Sioux Tribe of Indians v. United States, 316 U. S. 317, 324-325 (1942). See, however, footnote 465 below, and accompanying text.

Lack of such statutory authority in the instance for the President's Executive order transferring naval reserve oil lands from the Navy Department to the Interior Department, which was involved in the Teapot Dome case, was discussed in the opinion in the lower court. See United States v. Pan-American Petroleum Co., 6 F. 2d 43 (1925). The point was left undecided on the appeal. See Pan-American Petroleum Co. v. United States, 273 U. S. 456 (1927). See also Haglund, Naval Reserve Leases (1932), 20 Geo. L. Rev. 293. 459 43 U. S. C. A., secs. 141 and 142 36 Stat. 847.

400 United States v. Midwest Oil Co., 236 U. S. 459 (1915); 22 Op. A. G. 240 (1898, (revocable licenses); (35 Op. A. G. 485 (1928) (revocable permit pending application to Congress). See also footnote 465 below, and accompanying text.

401 A few examples are the following: A statute of 1939 provided for the reorganization of Executive and administrative agencies by Executive order. 5 U. S. C. A.. secs. 133133-r; 53 Stat. 561-565; 5 U. S. C. A., secs. 133 and 133t; 53 Stat. 813. For the duration of the present war this was carried still further in Title I of the First War Powers Act, 1941, 50 U. S. C. A. App., S. 601, 55 Stat. 838. Under its authority numerous transfers of functions, personnel, and property from one agency to another, in connection with coordination of war activities, have been made by Executive order. The more important of these are conveniently collected in the annotations to 50 U. S. C. A.. App. S. 601, at pn. 164-172. Another statute is 43 U. S. C. A., sec. 1076; 27 Stat. 593 (authority to the President to make grants to municipalities under stated restrictions of land in abandoned military reservations). One section in the Bankhead-Jones Farm Tenant Act (7 U. S. C. A. 1011c; 50 Stat. 525) conferred limited authority on the President to transfer to other public agencies the property acquired by the Secretary of Agriculture under that Statute. See also footnote 393 above, with accompanying text.

462 Among these are the following: 41 Stat. 131, 132 (interchange without compensation of military materials, including land, between Army and Navy, upheld in (1938) 38 On A. G. 293); 16 U. S. C. A. 492, 38 Stat. 1100, 43 Stat. 1197, 45 Stat. 993 (Secretary of Agriculture authorized to permit the Departments of War and Navy to use earth, stone, and timber from national forests); 34 U. S. C. A. 523, 39 Stat. 606 (authorizing President to transfer nationally selected land under control of other agencies to the Navy Department for use as a naval radio station, or other naval purposes); 10 U. S. C. A. 1341. 40 Stat. 848 (President authorized to reserve any Government property or unappropriated or reserved public lands for aviation stations or fields for testing and experimental work): 10 U. S. C. A. 1597a, 44 Stat. 1236 (retransfer to War Department of real property from other departments and sale for credit of military post construction fund); 15 U. S. C. A. sec. 606b-1, 56 Stat. 175 (transfer of real estate by Government agencies to the Recon