full and complete compensation he is to be paid 50 percent of such amount and may sue the United States for the balance of what he regards as fair and just compensation.

The President's authority to requisition under these statutes has by Executive orders been delegated to various agencies, subject to directions designed to protect the system of priorities and allocation of materials required under the war-production program. Requisitioning by the agencies accordingly is made subject to approval by the War Production Board with respect to whether the requisitioning is consistent with the priorities and allocation program of the general production and supply plans of the War Production Board.645 The War Production Board has issued an elaborate set of regulations to systematize this portion of its relations with the other agencies under the requisitioning acts.646

In addition to these general requisitioning statutes there are certain special enactments covering more limited fields which have received considerable attention. In time of actual or threatened war, stores, supplies; and materials of war previously purchased from the United States by any State, Territory, or the District of Columbia for the use of the National Guard may be requisitioned by the United States for military use. When so requisitioned, credit for the ultimate return of such property in kind is provided for.647 Under the act of August 29, 1916,648 the President in time of war is empowered through the Secretary of War to take possession and assume control of any system or systems of transportation or any part thereof and to utilize the same to the exclusion as far as may be necessary of all other traffic thereon, for transfer or transportation of troops, war material, and equipment, or for such other purposes connected with the emergency as may be needful or desirable. Under the act of June 29, 1936,649 whenever the President shall proclaim that the security of the national defense makes it advisable, or during any national emergency declared by proclamation of the President, it shall be lawful for the Maritime Commission to requisition or purchase any vessel or other watercraft owned by citizens of the United States, or under construction within the United States, or for any period during such emergency to requisition or charter the use of any such property. Just compensation for the property or use thus requisitioned is to be paid, but the owner is not to be paid for any consequential damages. Under the act of August 18, 1942,650 the War Shipping Administration, with the approval of the Secretary of the Navy or his designee, or such other officers or agencies as the President may designate, is given the power to take or appropriate for the use of the United States property captured at sea. By the act of June 6, 1941,6 au

651

645 Executive Order No. 8942, 6 F. R. 5909, and Executive Order No. 9138, 7 F. R. 2919. See also Executive Order No. 9316, 8 F. R. 3469 (requiring periodic report to President every 6 months, regarding operations under the requisition statute). 6467 F. R. 5746-5747.

647 32 U. S. C. A., sec. 39; 39 Stat. 204.

648 10 U. S. C. A., sec. 1361; 39 Stat. 645. See footnote 621 above for recent action under this statute.

649 46 U. S. C. A.. sec. 1242; 49 Stat. 2015, 53 Stat. 1255. As to the emergency powers of the Interstate Commerce Commission over water carriers see footnote 617 above, and accompanying text.

650 50 U. S. C. A., app. sec. 824; 56 Stat. 746.

651 46 U. S. C. A., note preceding sec. 1101, 55 Stat. 242, 56 Stat. 370. On how requisitioning under this statute affects forfeiture proceedings under 50 U. S. C. A., sec. 193, and vesting of property in the Alien Property Custodian_pursuant to the Trading with the Enemy Act, see The Pietro Campanella v. The Euro, 47 F. Supp. 374 (1942); The Antoinetta, 49 F. Supp. 148 (1943).

thority is given to the President during the existing national emergency "to purchase, requisition for any period during such emergency, charter or requisition the use of or take over the title to or the possession of for such use or disposition as he shall direct, any foreign merchant vessel which is lying idle in waters within the jurisdiction of the United States, including the Philippine Islands and the Canal Zone, and which is necessary to the national defense." This statute also provides that compensation "shall be determined and made to the owner or owners of any such vessel in accordance with applicable provisions of" the Merchant Marine Act of 1936.

In addition to the requisitioning statutes above mentioned may be noted also the type of statute, of which there are many with variations in detail, under which authority is granted to the Secretary of War or the Secretary of the Navy or other agencies to establish or develop or to acquire or construct facilities of various descriptions, including vessels, vehicles, and other war equipment and supplies or materials requisite for the manufacture or construction of such facilities,652 and also the provisions in the National Defense Act and related legislation authorizing under certain circumstances the taking over of industrial plants.653

29. Unlicensed Publication of Inventions

While the United States is at war,654 whenever the publication or disclosure of an invention by the granting of a patent might, in the opinion of the Commissioner of Patents, be detrimental to the public safety or defense he may order that the invention be kept secret and withhold the granting of a patent for such period as in his opinion the national interest requires. An applicant whose patent is thus withheld and who faithfully obeys the order of the Commissioner in this regard may tender his invention to the Government of the United States for its use. If and when he ultimately receives a patent, such an applicant is given the right to sue for compensation in the Court of Claims, such right to compensation to begin from the date of the use of the invention by the Government.655 No person shall file or cause to be filed in any foreign country an application for a patent in respect of any invention made in the United States except when authorized so to do by a license obtained from the Commissioner of Patents.656 The violator of these provisions is debarred from receiving a patent and any patent actually issued becomes invalid.657 The violator is subject, also, to criminal penalties of not more than $10,000 fine or imprisonment for 2 years, or both.658

052 Some of these are cited in footnote 579 above. See 56 Stat. 248 (various installations and facilities), and 56 Stat. 371 (lighter-than-air craft).

653 See footnotes 569, 571, and 573 above. See also Title II of the Second War Powers Act, footnote 590 above and accompanying_text. In this connection also see footnote 571 above for sketch of the terms of the War Labor Disputes Act. The legal background for action by the Executive in taking over industrial plants at the outbreak of the war is discussed at some length in an extensive note on American Economic Mobilization in (1942) 55 Harv. L. Rev. 427, at pp. 511-534.

Typical Executive orders issued in that connection are the following: No. 8868, 6 F.R. 4349 No. 8928, 6 F. R. 5559; No. 9141, 7 F. R. 2961; No. 9220, 7 F. R. 6413; No. 9225, 7 F. R. 6627; No. 9254, 7 F. R. 8333; No. 9340, 8 F. R. 5695 (coal mines). 456 Stat. 370. See also footnotes 655-658 below.

35 U. S. C. A., sec. 42; 40 Stat. 394, 54 Stat. 710.

656 35 U. S. C. A., sec. 42a; 55 Stat. 657.

35 U. S. C. A., sec. 42b; 55 Stat. 657.

5835 U. S. C. A., sec. 42c; 55 Stat. 657.

30. War Housing

A comprehensive plan has been established for erecting necessary housing facilities for rental or sale to persons engaged in national defense or war activities. The Navy and War Departments in cooperation with the United States Housing Authority,659 and also the Federal Works Administrator,660 were authorized under statutes of somewhat varying terms to carry on housing programs. Under these statutes the necessary real property therefor may be acquired by any of these agencies by eminent domain as well as by other means. Sec. 355 of the Revised Statutes is not to apply. Condemnation proceedings may be instituted by the Housing Authority in its own name. The Declaration of Taking Act is made applicable.

Provision is also made in connection with the war housing program for what is called defense public works,661 that is, facilities necessary for carrying on community life substantially expanded by the war program, such as schools, waterworks, sewers, public sanitary facilities, hospitals, recreation facilities, streets, and access roads.

Statutory provision has also been made for the financing of war housing projects, 662 and for war housing insurance 663 under which eligible mortgages which are given in connection with war-housing construction or disposal can be insured. The war housing program, now under the National Housing Agency, specifically includes the power to dispose of war housing properties as may seem opportune, on terms of cash or credit, that are deemed to be in the public interest. The war housing program thus now 665 not only provides for the erection of war housing structures by the United States for rental to war workers, but makes possible the financing and current disposal of such properties on terms that assure their continuing use for such residental purposes under limitations prescribed for the periods requisite for amortization.665a

664

659 42 U. S. C. A., secs. 1501 to 1505; 54 Stat. 681 to 683. In this connection authority is conferred by sec. 1502 to "acquire real or personal property or any interest therein by purchase, eminent domain, gift, lease, or otherwise." See footnote 665 below.

600 42 U. S. C. A., secs. 1521 to 1524; 54 Stat. 1125, 55 Stat. 147, 55 Stat. 361, 56 Stat. 11, and 42 U. S. C. A., sec. 1561, 56 Stat. 212. See footnote 665 below.

661 42 U. S. C. A., secs. 1531 to 1534; 55 Stat. 361-363. A dictum in Puerto Rico Light and Power Co. v. United States, 131 F. 2d 491 (1942), stated that this comprehended facilities for generation and transmission of electricity for light and power.

662 Beyond direct appropriations for construction of war housing as authorized by the pertinent statutes, such as 56 Stat. 633, financing of such projects through loans from the Reconstruction Finance Corporation manifestly is within the Broad authority expressed in 15 U. S. C. A., 606 b (2) and b (3); 55 Stat. 249. See also such legislation as 55 Stat. 14, providing among other matters for emergency funds for the President for defense housing, and ch. 572, 56 Stat. 763, increasing the amount authorized to be appropriated for defense housing.

663 12 U. S. C. A., sec. 1738; 55 Stat. 56, 55 Stat. 686, 56 Stat. 301, 305, and 12 U. S. C. A., sec. 1743; 56 Stat. 303.

664 42 TT. S. C. A., secs. 1544, 1552-1553; 54 Stat. 1127, 56 Stat. 12, 56 Stat. 212, 56 Stat. 13, 57 Stat. 388. See also footnote 665 below.

665 Under authority of Title I of the First War Powers Act, 1941, 55 Stat. 838, 50 U. S. C. A., App. sec. 601, the President by Executive Order No. 9070, 7 F. R. 1529, provided for consolidation of housing agencies and functions in the National Housing Agency, under whose charge the numerous housing activities carried on by the Federal Government are by this order coordinated and systematized, including, with certain exceptions, the war housing activities.

665a For a brief account of progress in War Housing Construction see Victory Bulletin, issue of March 31, 1943 (vol. 4, no. 13, p. 37) wherein it appears that approximately 85 percent of all private war housing is covered by F. H. A. insurance. According to figures appearing in the same publication in its May 12 issue (vol. 4, no. 19, p. 512) Government finance commitments for war housing and community facilities have totaled almost 2 billions of dollars, while permitted privately financed war housing has totaled a little over one and one-third billion dollars.

VI. Military Damage; Defensive Sea Areas

A. Military Damage

Redress for unauthorized taking or destruction of property by individual members of the armed forces is, under the ordinary domestic law, provided for only through the common law personal liability of the individual wrong-doer where the damage was brought about by wrongful conduct on his part.666 That in itself involves no governmental liability.667 The Articles of War, however, provide for disciplinary action in such cases against the offender by the military authorities,668 calculated to secure prompt restitution on his part. In the absence of applicable statute, where no individual wrongdoing is involved the ordinary domestic law provides no redress for destruction of property by military activity in line of duty.669 Such harm is in that view regarded like other misfortune, as, for instance, loss from a stroke of lightning, or storm, or drouth, with regard to which individual sufferers must take their chances as part of the hazards of life. 670

There being no legally enforceable claim against the Government of which courts could in such case take jurisdiction, in view of the wellsettled doctrine of governmental immunity from suit,671 applications to Congress for adjustment of meritorious claims growing out of governmental activity became very numerous.672 In recent decades this routine pressure on Congress has been somewhat relieved through certain general legislation permitting the adjustment by certain administrative officers 673 of meritorious claims of minor amounts under various limited statutory authorizations, but leaving the larger and more special types of claims to be dealt with by special application to Congress as heretofore.674 The discussion which follows sets forth what appear to be the principal available enactments concerning military damage.

A statute enacted in 1912 675 permitted adjustment of minor claims for damage to and loss of private property, caused by heavy gunfire and target practice, and for damage to vessels, wharves, etc., due to

666 Joos V. Illinois Nat. Guard, 257 Ill. 138, 100 N. E. 505, 43 L. R. A. (N. S.) 1214 (1912), L. R. A. 1915 A 1163; Mitchell v. Harmony, 13 How. 115 (1851). References citing authorities dealing with the historical background of this fundamental position are conveniently available in Goodhart, The Legal Aspect of the American Forces in Great Britain (1942), 28 A. B. A. J. 762, at pp. 763 and 764.

667 See footnotes 818-821 below, with accompanying text.

068 Articles of War, par. 105; 10 U. S. C. A. 1577; 41 Stat. 808.

669 Mitchell v. Harmony, 13 How. 115 (1851), dictum at p. 136.

670 See, generally, Jennings, Tort Liability of Administrative Officers (1937), 21 Minn. L. Rev. 263; Holtzoff, Tort Claims Against the United States (1939), 25 A. B. A. J. 828; Governmental Tort Liability-a Symposium (1942), 9 Law and Contemporary Problems, 179– 370.

671 See footnotes 818-826 below, with accompanying text.

672 38 Op. A. G. 514 (1936), at p. 517; Holtzoff, Tort Claims against the United States (1939), 25 A. B. A. J. 828 at p. 830; President's Message in Support of the Federal Tort Claims Bill (1942), 88 Cong. Rec. 323.

673 In Mitchell v. United States, 267 U. S. 341 (1925), it was stated that while Congress had the power to direct the payment of compensation for damage suffered in connection with the taking of property, as States have not infrequently done, mere authorization to the Secretary of War to take into consideration losses due to the destruction of the business where he purchased land upon agreement with the owners gave the plaintiff, property owner, no right to compel payment for such losses when the land was taken by eminent domain. See also footnotes 819 and 823-825 below, with accompanying text.

674 See footnote 672 above.

675 5 U. S. C. A., sec. 208; 37 Stat. 585 (amended in 1921) (limit $1,000).

military operations or maneuvers. Legislation in 1922 similarly recognized minor claims to or loss of private property incident to training, practice, operation, or maintenance of the Army,676 as well as damage both to persons and property resulting from the operation of aircraft at home and abroad.677 In 1936 additional legislation 678 permitted the adjustment of claims for injury or death of any person not an American national, caused by governmental officers or employees, including members of the armed forces while serving in any foreign country in which the United States exercises the privilege of extraterritoriality.679 Somewhat similar legislation was enacted in 1937 680 permitting the adjustment of minor claims for damage caused through the operation of the Civilian Conservation Corps.

On January 2, 1942, was enacted an additional statute 681 for the purpose of promoting and maintaining friendly relations with foreign countries by prompt settlement of meritorious claims. This statute authorizes the Secretary of War and the Secretary of the Navy to appoint claims commissions composed of officers of the armed forces for settlement of damages caused by the armed forces of the United States in foreign countries instead of leaving such claims, as under earlier legislation, to be dealt with through diplomatic negotiations by the Department of State. A statute enacted on July 9, 1942,682 authorizes the head of the department or agency using the public domain of the United States for war purposes to compensate holders of grazing permits and licenses for losses sustained by them by reason of such use of public lands for war purposes. This statute expressly disclaims the creation of any liability not then existing against the United States. A statute enacted September 29, 1942,683 amended the Soil Conservation and Domestic Allotment Act by providing for payments under that act with respect to the crops involved in cases where farmers' crops are acquired by the United States prior to harvest in connection with the acquisition of their farms for use in the national war effort.

Even war damage caused by operations of the enemy has in very recent years by statute been recognized in some degree as giving rise to enforceable claims upon the Government. English experience with bombing from the skies in 1939 and thereafter has resulted in statutory provisions for nation-wide compulsory insurance against such war damage to property.684 The basis on which this legislation is

676 31 U. S. C. A., sec. 223, 42 Stat. 725 (limit $500). This statute has been frequently amended in minor particulars. See annotations as indicated in 31 U. S. C. A., sec. 223, Cumulative Annual Pocket Part. Reference may also be made to 31 U. S. C. A., sec. 215, 42 Stat. 1066 (negligence of officer or employee of Government in scope of employment-limit $1,000), certain applications of which are indicated in 38 Op. A. G. 514 (1936), 39 Op. A. G. 102 (1937), and 39 Op. A. G. 122 (1937).

677 31 U. S. C. A., sec. 224; 42 Stat. 737 frequently amended in minor particulars. sec. 224, Cumulative Annual Pocket Part.

(Present limit $500). This statute has been See annotation as indicated in 31 U. S. C. A.,

678 31 U. S. C. A., sec. 224a; 49 Stat. 1113 (limit $1,500).

679 On extraterritoriality, in this connection, see Wigmore. The Extraterritoriality of the United States Armed Forces Abroad (1943), 29 A. B. A. J. 121; King, Jurisdiction Over Friendly Foreign Armed Forces (1942), 36 Am. J. Int. L. (Oct. 1942).

680 16 U. S. C. A., sec. 5840, 50 Stat. 321 (limit $500).

681 31 U. S. C. A., sec. 224d; 55 Stat. 880 (limit $1,000), amended Apr. 22, 1943, 57 Stat. 66, 78th Congress (limit $5,000).

682 56 Stat. 654.

683 56 Stat. 791.

684 The War Damage Act, 1941, 4 and 5 Geo. 6, c. 12. The extent and elaborateness of the problems that have arisen in connection with the English experience with bombing from the skies and the effort to distribute the losses resulting are but faintly suggested by the bulk of the materials found in the statutes and regulations on the subject, which in Halsbury's, The Complete Statutes of England, 34, continuation volume 1941, cover pages 450-580 inclusive. See also footnote 819 below, with accompanying text.