utory authority are given in the footnote. As already noted in an other place, statutory authority to the President to carry on war activities is ordinarily given a liberal construction.464

It may be added that when interagency transfers are made by Executive authority in order to facilitate war activities, the President's independent constitutional power as Chief Executive and Commander in Chief of the armed forces may also be adduced in support of the validity of such transfers, at least so long as no congressional statute prohibits the action taken.465

IV. Property Subject to Acquisition

A. General Principle

Broadly speaking, all property of every kind within the territorial jurisdiction of the United States is subject to acquisition for war purposes.166 This is true whether it is realty or personalty, whether owned by private persons or by State or political subdivision, whether the owners are citizens or aliens, and, if they are aliens, whether they are enemies, friends, or neutrals. 467

B. Certain Problems Involved for Distinctive Types of Property 1. Real Property in Private Ownership or Owned by State or Political

Subdivisions

a. Lands Above High Water Mark or Underlying Nonnavigable Waters

Land of this description is broadly subject to acquisition by the United States for war purposes.468 Taking for war purposes being a taking for public use, it falls within the range of the fifth amendment requiring that private property shall not be taken for public use without just compensation.469

b. Lands Underlying Navigable Waters

It has been held that any private rights in navigable 470 streams of the United States and in the soil beneath them are subservient to the dominant power of Congress to promote and improve navigation.171

struction Finance Corporation or its subsidiary corporations). above, with accompanying text.

See also footnote 393

46 Cf. recent orders placing certain lands under the control and jurisdiction of the Navy or War Departments, e. g., Executive Order No. 8337, February 3, 1940, 5 Fed. Reg. 5 (Puerto Rico); Executive Order No. 8376, March 13, 1940, 5 Fed. Reg. 1077 (certain lands which had been reserved for military purposes in 1917 placed under the control of the Secretary of the Interior because they had become useless for military purposes). 464 See footnotes 16 and 17 above, with accompanying text.

465 Suggestions in (1940) 39 Op. A. G. 484 touching the President's independent constitutional authority for making exchanges of public property to others in absence of statutory prohibition thereof would seem to be equally cogent with reference to interagency transfers of property as a war measure. See (1935) 38 Op. A. G. 293.

Following in the wake of United States v. Midwest Oil Co., 236 U. S. 459 (1915), referred to in footnote 460 above, a trend has developed in recent years to conclude that in the absence of express contrary direction from Congress the President may on his constitutional authority as Chief Executive determine the use of the public domain. See (1923) 33 Op. A. G. 436; (1934): 37 Op. A. G. 415.

Lands of Hawaii reserved for the War Department by Executive order may be restored to Hawaii by Executive order, 35 On. A. G. 205 (1927).

466 See Whiting, War Powers under the Constitution of the United States (43d ed. 1871), p. 18. 467 For details see footnotes 5 and 151 above, and footnotes 737-803 below, with accompanying text.

408 Such was the property involved, for instance, in the leading case of United States v. Gettysburg Elec. R. Co., 160 U. S. 668 (1896).

469 Id.

470 On what is meant by "navigable" see United States v. Appalachian Elec. Power Co., 311 TT S. 377 (1940).

471 United States v. Chicago M. St. P. & P. R. Co., 312 U. S. 592, 596 (1941).

Substantially the same position has been taken for tide and submerged land along the shores of the ocean 472 and of navigable lakes.473 As it has sometimes been expressed, the private owner's interest in lands underlying navigable waters is subject to a navigation servitude 474 in the Federal Government.

Accordingly, the interest of the owner in submerged lands underlying navigable waters of the United States is held to be so qualified that it is at all times subordinate to such use of the submerged lands and of the waters flowing over them as may be consistent with or demanded by the public right of navigation.475 In such a case no right to compensation for the exercise of this navigation servitude is recognized ;476 the damage sustained by the owner is regarded as resulting, not from any taking of the owner's property in the submerged lands, but from the lawful exercise of a power to which the property has always been subject. This is equally applicable where improvement in navigation is utilized for war purposes.

477

478

2. Personal Property in Private Ownership or Owned by State or Political

Subdivisions

a. Chattels Generally

Chattels are broadly subject to requisitioning for war purposes, provided proper authority for such requisition has been conferred.479 Recent congressional statutes, authorizing requisitioning on a large scale require the payment of compensation.80 Under the rules of war, moreover, as embodied in traditionally accepted international law,481 requisitioning of private property for war purposes, except in the most limited situations for the immediate use of the army in the field,482 involves the obligation to make compensation.483

b. Submarine Cables

Submarine cables connecting an occupied territory with a neutral territory are not to be seized or destroyed except in case of absolute necessity. They must likewise be restored and compensation fixed when peace is made.484

c. Personal Property Acquired or Utilized_in Connection With Acquisition and Use of Real

Property

There is no general statute with respect to personalty that corresponds to the general condemnation statute applicable to realty.485

472 Greenleaf-Johnson Lumber Co. v. Garrison, 237 U. S. 251 (1915); Lewis Blue Point Oyster Co. v. Briggs, 229 U. S. 82 (1913).

473 Sanitary District of Chicago v. United States, 266 U. S. 405 (1925).

474 Gibson v. United States, 166 U. S. 269, 272 (1897); Philadelphia Co. v. Stimson, 223 U. S. 605, 635 (1912).

475 Scranton v. Wheeler, 179 U. S. 141, 163 (1900).

476 See cases cited in footnotes 471-475 above.

This

477 United States v. Chicago, M. St. P. & P. R. Co., 312 U. S. 592, 597 (1941). position has been applied even to the erection of structures completely excluding the owner from the site in question, where the United States, in order to improve navigation, appropriates a portion of the bed of navigable water. See for instance Scranton v. Wheeler, 179 U. S. 141 (1900) (pier); Luther J. Bailey, et al. v. United States, 62 C. Cls. 77 (1926) (bulkhead for submarine base and landing field for air and sea planes); James v. Dravo Contracting Co., 302 U. S. 134, 140 (1937) (dam). See also Franklin v. United States, 101 F. 2d 459 (1939).

478 Greenleaf-Johnson Lumber Co. v. Garrison, 237 U. S. 251 (1915).

479 That under certain military circumstances the Executive may exercise such authority even without statute, see footnotes 420 and 424 above, with acompanying text. 480 See footnote 423 above and footnotes 643-653 below, with acompanying text.

481 See footnotes 137, 335, 420, and 424 above.

482 See footnote 335 above, with accompanying text.

483 See footnotes 313 and 314 above, with accompanying text. See also Basic Field Manual (see footnote 431 above), pars. 335. 339 and 340

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

485 As to which see below footnote 504, and accompanying text.

Under Title II of the Second War Powers Act, however, there may be condemnation of "any real property, temporary use thereof, or other interest therein, together with any personal property located thereon or used therewith, that shall be deemed necessary for military, naval, or other war purposes.

" 486

d. Intangible Property: Debts, Public and Private; Bonds; Corporate Stock; Patents, etc.

489

Under traditionally accepted international practice, public debts owed alien enemies are regarded as sacrosanct with respect to confiscation,487 and it has been widely thought that similar policy should be applied to similar private debts.188 Confiscation of such private debts is within the legal power of the United States under its domestic law, it being within the war power and there being no constitutional obstacle. In the absence of confiscating legislation, however, the law of nations, recognized as part of the domestic law, 490 in case of such seizure, would require compensation.491 Claims against the United States held by Confederate sympathizers at the outbreak of the Civil War were extinguished under congressional authority.492 There has been some argument among commentators over whether the expropriations arising from the operation of the Trading with the Enemy Act,493 enacted in 1917, amounted to outright confiscation.494 Reenacted in the First War Powers Act of 1941,495 it has been asserted not to involve confiscation. 196 Vesting orders issued by the Alien Property Custodian under the authority of this statute and certain Executive orders pursuant thereto have during the present war covered a very large array of alien-owned intangible property interests in the form of bonds, corporate stock, patents, interests in contracts, interests in patent application, etc.497 Currency of the United States 498 and

486 See below, footnote 590, and accompanying text. In the debate on enactment of this statute Senator Barkley, majority leader, and Senator O'Mahoney, who was in charge of the bill on the Senate floor, joined in a statement that this act confers upon the Government "the same power to take the personal property located on the real estate that it has to take the real estate itself." See 88 Cong. Rec. p. 636. See also remarks in the House debate to the same effect by Representative Springer, at 88 Cong. Rec., p. 1653. 487 See footnote 336 above, with accompanying text.

483 2 Hyde, International Law, p. 242: Turlington, Treatment of Enemy Property in the United States (1928), 22 Am. J. Int. L. 270, 281, et seq.

489 In Brown v. United States, 8 Cr. 110, 124 (1814) the court recognized a universal practice not to seize and confiscate debts and credits, but said:

"The right of the sovereign to confiscate debts being precisely the same with the right to confiscate other property found in the country, the operation of a declaration of war on debts and on other property found within the country must be the same."

See als Hanger v. Abbott, 6 Wall. 532 (1867), but cf. Planters' Bank v. Union Bank, 16 Wall. 483, 496-497 (1872).

490 See footnotes 95-98 above, with accompanying text. 491 See Sutherland v. Mayer, 271 U. S. 272, 288 (1926). 492 Act of March 2, 1867, 14 Stat. 571.

493 See below, footnote 595, and accompanying text.

404 Armstrong. The Confiscation Myth (1923), 9 A. B. A. J. 485; Cohen, The Obligation of the United States to Return Enemy Alien Property (1921), 21 Col. L. Rev. 666; Lafferty, Should America Return Private German Property (1920), 15 Ill. L. Rev. 79; Potterf, Treatment of Alien Enemy Property in War Time and After by the United States (1927), 2 Ind. L. J. 453; Hearings before the House Committee on Ways and Means on H. R. 10820. 69th Cong. (1925-1927), pt. 2. The Supreme Court in a fairly recent opinion indicated that it believes that confiscation was not intended, Becker Co. v. Cummings, 296 U. S. 74 (1935), although, as against the United States, it is clear that the enemy alien lost every vestige of title, and any compensation or restitution was by grace of Congress, Cummings v. Deutsche Bank, 300 U. S. 115, 120 (1937). See also footnotes 608-610 and 780-782 below, with accompanying text.

495 55 Stat. 839, 50 U. S. C. A. Ann., sec. 616. approved December 18, 1941. In the interim it had been once before amended, in the Emergency Banking Act of March 9, 1933 (48 Stat. 1), to make it specifically applicable not only to time of war but to any period of national emergency declared by the President.

496 Turlington. Vesting Orders Under the First War Powers Act (1942), 36 Am. J. Int. L. 460. See also footnote 610 below.

497 See footnote 604 below for illustrations.

498 Nortz v. United States. 294 U. S. 317 (1935)· Comnhell v. Chase Nat. Bank of City of New York. 5 F. Sunn. 156 (S. D. N. Y. 1933), aff'd 71 F. 2d 669 (C. C. A. 2, 1934, cert. den. 293 U. S. 592 (1934).

choses in action against it 499 may be expropriated with compensation. It has been broadly stated that all forms of choses in action and claims of American citizens against foreign governments are subject to the right of eminent domain.500 In recent years there has been a large increase in publicly owned property of a commercial or non-political nature. That such property owned by another State is subject to capture or expropriation by the United States, as in the case of property held by other owners can hardly be denied.501

While the United States thus has broad legal power to expropriate, the general tendency of its practice has been to expropriate with compensation rather than to resort to any broad policy of confiscation.502 3. Property, Real or Personal, Owned by or Under the Control of the United States or Agencies Thereof

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 in control to the agency that is to use the property for war purposes. This matter is dealt with at another place in this manual.503

V. Existing Statutes Authorizing Acquisition

A survey of certain legislation available in this connection is presented at this point with a brief discussion of the more important

statutes.

A. General Condemnation Statute, Act of August 1, 1888

The general act under which the United States institutes condemnation proceedings is the act of August 1, 1888.504 This statute provides that whenever an officer of the Government is "authorized to procure real estate for * * * public uses" he is authorized to acquire it by condemnation. It also provides that the United States district courts of the district wherein such real estate is located shall have jurisdiction of proceedings for such condemnation. The statute requires that the practice and procedure in condemnation suits in the Federal courts shall conform "as near as may be" to that existing in like cases in the State courts in the State wherein the property is located. Conformity will not be required where its effect will be to hinder materially the conduct of the proceedings. 505 Authorization

499 DeLaval Steam Turbine Co. v. United States, 284 U. S. 61 (1931); Russell Co. v. United States, 261 U. S. 515 (1923).

50) Remarks of Senator King, 64 Cong. Rec. 5283 (1923).

501 Cf. 36 Op. A. G. 547 (1932). -Netherland Rifles. A neutral vessel placed under enemy control for the latter's use would seem confiscable. The Bermuda, 3 Wall. 514 (1865). In accord with the last statement see International Law Situations, Naval War College (1935), p. 19.

502 The Treaty of Peace in 1783 with Great Britain expressly gave the right to creditors to collect their debts, and the famous case of Ware v. Hylton, 3 Dall. 199 (1796), arose out of this provision. During the Revolutionary War only one State seems to have confiscated debts. See Turlington, Treatment of Enemy Property in the United States (1928). 22 Am. J. Int. L. 270. See also footnote 494 above and 608 to 610 below, with accompanying

text.

503 See above, footnotes 457 to 465, and accompanying text.

504 40 U. S. C. A. secs. 257, 258. 25 Stat. 357.

505 Lurton v. North River Bridge Co., 147 U. S. 337, 338 (1893); City of Oakland y. United States, 124 F. 2d 959 (1942). As to the power of the Supreme Court to prescribe general rules of practice and procedure for the federal district courts, and the matter of jury trial in this connection, see footnotes 275 and 277 above.

to "acquire" 506 or "purchase" 507 is sufficient to authorize condemnation of realty. The statute is applicable to Federal condemnation both in the States and Territories.508

B. Declaration of Taking Act; Immediate Possession

An ordinary condemnation proceeding involves delay in that possession of the land in question is not taken until after judgment and payment of the award. The Declaration of Taking Act,509 a relatively recent statute, provides that in condemnation proceedings the title to land can be taken immediately by the filing of a declaration of taking and the deposit in court of the estimated amount of just compensation. The court is given power to fix the time within which and the terms upon which the parties in possession shall be required to surrender possession to the condemnor. Upon application of the parties in interest, the court may order that the money deposited in the court, or any part thereof, be paid forthwith for or on account of the just compensation to be awarded in the proceeding. Where the money deposited in Court as estimated compensation is thus paid to the condemnee on account but the amount thereafter awarded in the proceeding turns out to be less than the amount thus already paid, the Government can recover from the condemnee the amount of the overpayment.510

Under the Rivers and Harbors Act immediate possession may be acquired without a declaration of taking in condemnations for river and harbor improvements.511

C. The Tucker Act, Providing Remedy in Certain Cases for Obtaining Just Compensation

Under this act the jurisdiction given to the Court of Claims and the district courts to adjudicate claims against the United States includes claims arising out of contracts, express or implied.512 Such jurisdiction does not extend to tort claims.513 It has been invoked frequently to compensate one whose property has been taken by Fed

500 United States v. Jotham Bixby Co., 55 F. 2d 317 (S. D. Calif. 1932), aff'd sub nom. C. M. Patton & Co. v. United States, 61 F. 2d 970 (C. C. A. 9, 1932), dism. as moot, 289 U. S. 705 (1933).. As to gifts, in this connection, see footnote 548 below.

507 Hanson Lumber Co. v. United States, 261 U. S. 581 (1923).

508 That a state or territory may institute condemnation proceedings for the benefit of the United States, see 24 Op. A. G. 640 (1903). Cf. footnote 522-526 below, with accompanying text.

500 40 U. S. C. A. secs. 258a-258e, 46 Stat. 1421. Moreover, under an act of October 21, 1942, 40 U. S. C. A. sec. 258f, 56 Stat. 797, the Attorney General is authorized to stipulate or agree on behalf of the United States to exclude any property or any part thereof, or any interest therein, that may have been, or may be, taken by or on behalf of the United States by declaration of taking or otherwise. See United States v. 16,572 Acres of Land, 49 F. Supp. 555, 557 (1943). As to proceedings under declaration of taking in the District of Columbia, see 40 U. S. C. A., secs. 361-386, 45 Stat. 1415. The Declaration of Taking Act is constitutional. City of Oakland v. United States, 124 F. 2d 959 (1942); Atlantic Coast Line R. Co. v. United States, 132 F. 2d 959 (1943); Potomac Elec. Power Co. v. United States, 85 F. 2d 243 (1936).

510 United States v. Miller, 317 U. S. 369, 380-382 (1943).

511 33 U. S. C. A., sec. 594, 40 Stat. 911. Provisions for immediate possession are included also in Title II of the Second War Powers Act. See footnote 590 below, with accompanying text.

It has also been held that where there is authority to condemn, the condemnor may on proper application be awarded immediate possession, even independently of such statutes as the Declaration of Taking Act, provided there is adequate assurance of payment in any event for such advance possession. Commercial Station Post Office v. United States, 48 F. 2d 183 (1931).

512 28 U. S. C. A., secs. 41 (20), 250 (1), 36 Stat. 1093, 1136.

513 For this reason an unauthorized taking by a military commander would not create any liability on the part of the United States, Juragua Iron Co. v. United States, 212 U. S. 297, 310 (1909).