eral eminent domain. Its presence provides remedial procedure to the property owner where the Government, on occasion, expropriates property without waiting to institute condemnation proceedings.514

D. Articles of War, Articles for the Government of the Navy, Army and Navy Regulations

The Articles of War are a series of statutory provisions which govern the armies of the United States. 515 The articles for the Government of the Navy are similar statutory provisions regulating the internal affairs of the Navy.516

The Rules of Land Warfare contained in the Basic Field Manual published by the War Department 517 are general regulations of the Executive Department in control of the Army.518 The Basic Field Manual contains many provisions relating to expropriation of property in wartime. It incorporates certain rules of the Hague Convention of 1907 519 as well as certain rules of the Geneva Convention of 1929.520 It adds additional material on the subject of property rights in belligerent territory and under military government. Army regulations, being properly authorized, are deemed to have the effect of law. 521

E. Acts Relating to Territories, Possessions, District of Columbia

Without an authorizing act of Congress the power of eminent domain cannot be exercised within the territories and possessions even by the territorial governments thereof.522 Provisions for eminent domain generally obtain in the organic acts of the territories,523 although it is otherwise in the case of Alaska.524 With the possible exception of the Philippines,525 condemnation statutes of the United States, not local in nature, are applicable to Federal condemnation in the territories and possessions.526 The Philippine Independence Act contains a provision that the Philippine Islands recognize the right of the United States to expropriate property for public uses during the

514 Martha H. Alexander v. United States, 39 C. Cls. 383 (1904). See also footnote 270 above, and Portsmouth Co. v. United States, 260 U. S. 327, 67 L. Ed. 287 (1922). 515 10 U. S. C. A., secs. 1472-1593a, 41 Stat. 787-812. As to their application to civilians, see Morgan, Courtmartial Jurisdiction over Non-Military Persons under the Articles of War (1920), 4 Minn. L. Rev. 79. The first Articles of War were adopted in 1775, see Caldwell v. Parker, 252 U. S. 376 (1920).

516 34 U. S. C. A. c. 21. Included in these articles is article 15 which provides that the proceeds from the capture of any prizes are not to be distributed among the captors, nor is any bounty to be paid for the sinking or destruction of enemy vessels in time of war. 517 Basic Field Manual 27-10, 1940.

518 The Instructions for the Navy Governing Maritime Warfare, issued in 1917, contained many provisions relating to the expropriation of property. A new Manual of instructions for the Navy Governing Maritime Warfare, issued in 1941, is restricted in circulation. 519 See footnotes 287 to 290 above, with accompanying text.

520 See 47 Stat. 2074, relating to prisoners of war, including their personal effects, etc. 521 Gratiot v. United States, 4 How. 80, 117 (1846). Cf. Gates v. Goodloe, 101 U. S. 612 (1879); United States v. Eliason, 16 Pet. 291 (1842). Inconsistent congressional legislation, however, generally is held paramount, United States v. Symonds, 120 U. S. 46 (1887). See footnotes 43-44 above, with accompanying text.

522 See 24 Op. A. G. 640 (1903).

523 48 U. S. C. A., sec. 562 (Hawaii), 31 Stat. 150, 36 Stat. 444; 48 U. S. C. A., sec. 1224 (Philippines), 32 Stat. 706; 48 U. S. C. A., sec. 821 (Puerto Rico), 39 Stat. 964. Under the organic act of Hawaii the President is empowered to take public lands ceded to the United States but left in possession of Hawaii for the public use of the United States, 48 U. S. C. A., sec. 511, 36 Stat. 447, 46 Stat. 789.

524 48 U. S. C. A., sec. 77, 37 Stat. 514. Congress has passed a general statute providing for condemnation in Alaska, 31 Stat. 522.

525 The organic law of the Philippines makes inapplicable the statutory laws of the United States enacted subsequent to August 29, 1916 (39 Stat. 545), except when their application is provided for in the act in question or by the organic act.

526 The organic acts of the territories generally provide that the Constitution and laws of the United States, not inapplicable to the territories, obtain in those places.

time between its enactment and the final independence of those islands

A preference right is given the United States to purchase ccal in Alaska for the use of the Army and Navy. The President may fx s reasonable price, and if the producers are dissatisfied with that price they may sue in the Court of Claims to recover any additional amount alleged to be justly due upon such purchase.3

330

328

A treaty with Panama gives the United States sovereign rights of expropriation in the Canal Zone. This treaty provides that the value of the property prior to the time of the treaty shall be the measure of compensation, and the Attemer General has advised that the Fifth Amendment does not compel the value as of the date of tašing to be given where the United States exercises the power of eminent domain in the Canal Zone. Subsequent to this opinion, Congress passed a code of laws for the Canal Zone which includes the bill of rights Whether the just compensation provision therein contained has the effect of sompelling value as of the date of taking to be paid despite the treaty provision may be arguable. The treaty provision is specific: the later regulation is not. On the other hand, it is hard to see how paying more under this congressional mandate than the terms of the treaty require of the United States can be regarded as a treaty violation in cases where valuations actually have increased between the date of the treaty and the date of the taking.

The Governor of the Virgin Islands is given powers in time of war to suspend the writ of habeas corpus and to declare martial law.* This is true also of the Governors of Hawaii 3 and Puerto Rico,324 Congress has provided that as to the Islands of Tutuila and Manua, and certain other islands of the Samoan group. until Congress provides for the government of such islands, all civil, judicial, and military powers are to be vested in a person designated by the President. During the war years 1917-is the use by, and transfer from, various departments of the United States of public lands in the territories and possessions was common. This was usually done by Executive order.

For the District of Columbia Congress has provided a separate general condemnation statute for condemnation by the United States within that District. This statute prescribes in considerable detail the procedure to be followed, including provision for a trial, on demand of any party to the suit. before the court and a special jury of five disinterested freeholders in the District of Columbia who are not employed in the government service. This statute also provides for the use of declaration of taking in terms substantially identical with the terms of the Declaration of Taking Act.59

527 48 C. S. C. A., sec. 1222, 47 Stat. 768, 48 Stat. 456.

528 48 U. S. C. A., sec. 453, 35 Stat. 424.

529 33 Stat. 2234 2236.

530 31 Op. A. G. 44-1916).

631 Canal Zone Code (1934), title 1. sec. 1. adopted June 19, 1934, 48 Stat. 1122 (this code is not published in extenso in the Statutes at Large but is separately supplied at the Government Printing Officer.

532 48 U. S. C. A. séc. 1465a, 49 Stat. 1812.

533 48 U. S. C. A. sers. 551, 532, 31 Stat. 153, 42 Stat. 116. For material dealing with recent applications thereunder, see footnote 35 above.

534 48 U. S. C. A. sec. 771. 31 Stat. 81, 39 Stat. 935.

535 48 U. S. C. A. sec. 1431a. 45 Stat. 955.

530 E. g. Executive Order No. 3149 (Aug. 16. 1919) Alaska; Executive Order No. 3198 (Dec. 16, 1919) Alaska: Executive Order No. 2566 (Mar. 28, 1917) Hawaii.

537 40 U. S. C. A., secs. 261-356. 45 Stat. 1415, 49 Stat. 1921.

538 40 U. S. C. A., secs. 371–375.

539 40 U. S. C. A.. sec. 370. Cf. footnotes 509 and 510 above, with accompanying text.

F. Statutes Relating to the Acquisition of Property for War

Purposes

1. The War Purposes Act

Under this act 540 the Secretary of War is authorized to condemn any land, interest or use thereof needed for "the site, location, construction, or prosecution of works for, fortifications, coast defenses, and military training camps," and for the construction and operation of plants to produce nitrates and other munitions of war and for the development and transmission of power for the operation of such plants. This statute provides that the condemnation "proceedings" shall be prosecuted "in accordance with the laws relating to suits for condemnation of property of the States wherein the proceedings may be instituted." This statute also provides that "in time of war, or the imminence thereof, upon the filing of the petition for the condemnation of any land, temporary use thereof or other interest therein or right pertaining thereto to be acquired for any of the purposes aforesaid, immediate possession thereof may be taken to the extent of the interest to be acquired and used for military purposes. The War Purposes Act was in 1942 supplemented by the broader temporary emergency provisions of the Second War Powers Act.541

2. Timber Act

* *

This Act 542 extends the right of condemnation contained in the War Purposes Act to timber and necessary equipment and supplies as well as property or appliances suitable to produce such timber for the Army, Navy and United States Maritime Commission. Condemnation proceedings may be instituted by the Secretary of War, Secretary of Navy, Chairman of the United States Maritime Commission, together or individually. The purposes for which such right of condemnation may be exercised are to produce, manufacture or build aircraft, drydocks, or vessels, their apparel or furniture, for housing Government employees of the above-mentioned bodies, and procure for these bodies material and equipment.

3. Barracks

In acquiring sites for fortifications, the Secretary of War is directed and authorized to procure, under appropriations for that purpose, sufficient land for necessary barracks and quarters for the military troops required in connection with such fortifications.543

4. Nitrates-Products for Munitions

Through any agency he may designate, the President has been empowered to determine by investigation the best, cheapest and most available means for the production of nitrates and other products for munitions of war. He may designate sites necessary to carry out the

540 50 U. S. C. A. sec. 171, 26 Stat. 316, 40 Stat. 241, 518.

541 See footnotes 590-594 below, and accompanying text, where the Second War Powers Act is discussed in some detail, showing, among other matters, that the power to condemn was extended to include not only the real estate taken but also "any personal property located thereon or used therewith."

542 50 U. S. C. A. sec. 172, 40 Stat. 888, 44 Stat. 1083.

543 50 U. S. C. A. sec. 173, 33 Stat. 497.

purposes of this act. Authority is given to construct plants, locks, dams, improvements to navigation, powerhouses, and other plants and equipment necessary. The act expressly provides for condemnation as one of the means of acquisition of lands, rights-of-way, materials, minerals, and processes, whether patented or not, necessary for the construction and operation of these plants in the manufacture of such products.544

5. Air Corps Stations, Ranges, Mobilization, etc., Stations

The Secretary of War is authorized to acquire lands by condemnation for the location of air corps stations and depots for peacetime training where unable to do so by donation or exchange. Such acquisition is expressly exempted from the provisions of 10 U. S. C. A., sec. 1339, which requires that before the erection of permanent structures detailed estimates shall be submitted to Congress and that no structure costing more than $20,000 shall be erected without special authority from Congress, and also prohibits the expenditure of public moneys until a written opinion of the Attorney General shall be had as to validity of the title.545 The act authorizes the Secretary of War to acquire locations he may deem desirable for bombing and machinegun ranges, as may be required for the training of tactical units.546 Under another enactment the Secretary of War is authorized to accept land for permanent mobilization, training, and supply stations.547 Whether this authorization is sufficient for condemnation may be arguable.548

6. Helium Gas Act

Lands for the production and conservation of helium necessary to meet the needs of the Army and Navy and other agencies of the Federal Government may be acquired by purchase, lease, or condemnation. Rights-of-way and oil and gas leases may also be acquired. The acquiring agency is the Secretary of the Interior acting through the Bureau of Mines. Plants, wells, pipe lines, and other facilities involved, including patents, may be acquired. Any known helium gasbearing land on the public domain not covered by lease or permit may be reserved for the purposes of this act.549 The War Department has been granted authority to acquire land or an interest therein by purchase, lease, or condemnation, when necessary to explore for, procure, or reserve helium gas, as well as authority to acquire, construct, and operate plants for the production of helium gas. Similar authoriza

544 50 U. S. C. A. sec. 79, 39 Stat. 215. This act is not exclusively one for war purposes and authorizes the manufacture of fertilizers and other useful products; held constitutional in Ashwander V. Tennessee Valley Authority, 297 U. S. 288, Reh. den., Id. at p. 728 (1936). See also footnote 556 below, and accompanying text.

545 10 U. S. C. A. sec. 1343 (a), (b). (d), 49 Stat. 610, 611.

546 10 U. S. C. A. sec. 1343 (c), 49 Stat. 611.

547 10 U. S. C. A. sec. 1344, 39 Stat. 623.

548 The question basically involved is whether congressional authority to receive gifts of land without more constitutes authority "to procure" land, within the meaning of the general condemnation act, 40 U. S. C. A. secs. 257, 258, 25 Stat. 357. Intimating that it does not is In re Manderson, 51 Fed. 501 (1892). See, however, In re Condemnations for Improvement of Rouge River, 266 Fed. 105 (1920).

The act of August 26, 1937, 50 Stat. 857, sec. 2, made the special provision for a particularly described project for a named Air Corps Technical School that "in the event a donor is unable to perfect title to any land tendered as a donation, condemnation of such land is authorized in the name of the United States and payment of any and all awards for title to such land as is condemned, together with the costs of suit, shall be made by the donor." Somewhat similar provisions are found in certain River and Harbor legislation. See 33 U. S. C. A. secs. 592, 593, 36 Stat. 632.

549 50 U. S. C. A. sec. 161, 43 Stat. 1110, 44 Stat. 1387, 50 Stat. 885.

tion is granted to the Navy Department.550 The Bureau of Mines is authorized to maintain and operate helium production and repurification plants and to store helium.551

7. Naval Petroleum Conservation Act

The Secretary of the Navy is authorized with the approval of the President, in the event of inability to make satisfactory exchanges of land or agreements for conservation of naval petroleum with private owners of lands or lessees within or adjoining the Naval Petroleum Reserve No. 1, to acquire such property in Reserve No. 1 by purchase or condemnation.552

8. Space for War Department

The Secretary of War is authorized for official purposes of the War Department and within the limits of appropriations for rent made by any act making appropriations for the War Department to requisition the use of and take possession of any building or space therein in the District of Columbia, other than a dwelling house occupied as such or a governmentally occupied building. He is to ascertain and pay just compensation. The person entitled to compensation, if dissatisfied with the amount thus determined, is to be paid 75 percent of such amount and may sue the United States for any balance which would secure just compensation.

553

9. Coast Guard Stations

The Secretary of the Treasury is authorized to acquire the right to use and occupy sites for coast guard stations and houses of refuge which Congress shall authorize.554 He is also authorized to establish 10 coast guard stations on the coasts of Maine, Maryland, Massachusetts, and North Carolina to save life and property on these coasts.555

10. Tennessee Valley Authority Act

One of the purposes for which the Tennessee Valley Authority was created was that of national defense,556 namely, the manufacture of nitrates and creation of power resources.

11. Veterans' Hospitals

The Veterans' Administration may acquire sites for new hospitals or extensions of existing ones, together with incidental personalty.557

550 50 U. S. C. A. sec. 162, 43 Stat. 908.

551 50 U. S. C. A. sec. 163, 43 Stat. 1111, 44 Stat. 1387, 50 Stat. 886.

552 Act of June 30, 1938, 34 U. S. C. A., sec. 524, 52 Stat. 1252. This was amended in Public Laws 343 and 344-78th Congress (1944).

The extent of available statutory authority to deal with naval petroleum reserves has repeatedly been attentively examined by the courts. See, for instance, Pan American Petroleum & Transport Co. v. United States, 273 U. S. 456 (1927); Mammoth Oil Co. v. United States, 275 U. S. 13 (1927); United States v. Pan-American Petroleum Co., 55 F. 2d 753 (1932); Standard Oil Co. of California v. United States, 107 F. 2d 402 (1939); United States v. Standard Oil Co. of California, 20 F. Supp. 427 (1937). See also footnotes 458 and 460 above, with accompanying text.

553 40 U. S. C. A. sec. 41, 40 Stat. 826.

554 14 U. S. C. A. sec. 96, 18 Stat. 372, 38 Stat. 800. The Attorney General has ruled that under an act authorizing the establishment of coast guard stations a fee title could be acquired. 29 Op. A. G. 48 (1911).

555 14 U. S. C. A. sec. 98a, Rev. Stat. 4249, 38 Stat. 800.

556 16 U. S. C. A. sec. 831, 48 Stat. 58. The act is contained in 16 U. S. C. A. secs. 831831dd, 48 Stat. 58, 49 Stat. 1075. See also footnote 544 above, and accompanying text.

557 38 U. S. C. A. secs. 435, 438a, 438b, 438j, 43 Stat. 1212, 45 Stat. 715, 46 Stat. 53, 46 Stat. 1016, 46 Stat. 1550.