Ken-Rad Tube & Lamp Corp., Owensboro, Ky. v. Badeau

• Decision Date: 09 May 1944
• Docket Number: No. 132.,132.
• Parties: KEN-RAD TUBE & LAMP CORPORATION, OWENSBORO, KY., v. BADEAU.
• Court: U.S. District Court — Western District of Kentucky

55 F. Supp. 193

KEN-RAD TUBE & LAMP CORPORATION, OWENSBORO, KY., v. BADEAU.

No. 132.

District Court, W. D. Kentucky, Owensboro Division.

May 9, 1944.

Thomas E. Sandidge and Wilbur K. Miller, both of Owensboro, Ky., and Max O'Rell Truitt and Carl McFarland, both of Washington, D. C., for plaintiff.

Francis M. Shea, Asst. Atty. Gen., Eli H. Brown, III, U. S. Atty., of Louisville, Ky., and Joseph A. Fanelli, Sp. Asst. to Atty. Gen., for defendant.

SWINFORD, District Judge.

This case is before me on the plaintiff's motion for a permanent injunction and on the defendant's motion to dismiss the complaint. The record is complete and it is finally submitted for determination on its merits.

The plaintiff, the Ken-Rad Tube and Lamp Corporation, of Owensboro, Kentucky, seeks to permanently enjoin the defendant, Carroll Badeau, from placing in effect, in any of its plants, an order of the National War Labor Board pertaining to certain wage readjustments in the plaintiff's plants and to permanently enjoin the defendant from seizing, holding possession of or operating any properties of the plaintiff.

The plaintiff is, and has been for many years, successfully engaged in the manufacture of radio tubes and incandescent lamps, with plants located at Owensboro and Bowling Green, Kentucky, and Tell City, Huntingburg and Rockport, Indiana. It employs approximately five thousand people.

The defendant, Carroll Badeau, who is a Colonel in the United States Army and acting under orders from his superiors, has seized possession of the plaintiff's properties.

The entire plant and properties of the plaintiff, in so far as this lawsuit is concerned, have been, were at the time of the seizure, and are now and will continue to be admittedly devoted exclusively to the manufacture of essential war materials.

The source of the authority claimed by the defendant for his action in seizing the property is an order of the President of the United States, dated April 13, 1944 and addressed to the Secretary of War. The order is preceded by the following recital:

"Whereas after investigation I find and proclaim that there is a threatened interruption of the operation of the plants and facilities of Ken-Rad Tube and Lamp Corporation and Ken-Rad Transmitting Tube Corporation, located at Owensboro, Kentucky, as a result of a labor disturbance, and that the war effort would be unduly impeded or delayed by such interruption:

"Now, therefore, by virtue of the power and authority vested in me by the Constitution and laws of the United States, including section 9 of the Selective Training and Service Act of 1940, as amended, as President of the United States and Commander in Chief of the Army and Navy of the United States, it is hereby directed as follows:"

It is contended by the plaintiff that the seizure is without authority of law; that the order of the President was based primarily upon a report to him of the War Labor Board that the labor conditions in the plaintiff's plants were in an unsettled state and that production would be hampered, retarded or stopped by labor disputes and threatened strikes; that all of this was caused by the fact that the plaintiff had refused to put into effect an order of the War Labor Board.

The plaintiff admits that it declined to abide by the order of the War Labor Board but states that the order was void and of no effect, because of the failure of the Board to accord the plaintiff a hearing, the unlawful assumption of the rule-making power by the Board, the unlawful reduction of the beginner's training period, the unlawful retroactive effect of the order, the unlawful participation of employee representatives in the Board's order, and the imposition of confiscatory wage rates, which did not comply with the provisions of the Act that any order of the Board shall be fair and equitable.

To summarize the plaintiff's position in this respect, it reasons that since the order of the President, directing the seizure of the plants, was based upon a fear of threatened strikes and the threatened strikes were the result of the failure of the plaintiff to abide by an order of the War Labor Board and the order of the War Labor Board was invalid because of the above enumerated reasons, then the order of the President was invalid and there could, therefore, be no seizure.

I do not think that the determination of this case depends upon whether or not the order of the War Labor Board was valid or invalid.

The decision must be based upon either constitutional or statutory authority vesting in the President a legal right to issue such an order. If he had that right, by statute, or in the absence of adequate statute, the right under the Constitution, the plaintiff has failed in the case and its complaint should be dismissed. Or if it be determined from the record that, even though he might have had the right, he acted arbitrarily and without cause in issuing such an order, then the prayer of the plaintiff's complaint should be sustained and an equitable order entered.

It is my judgment that this case, and all others like it, may be reduced to a simple formula: Did the President act arbitrarily in ordering the facilities to be taken over by the Army? Proof that he did so act shall be upon him who asserts it.

If this seems to be an extreme view it should be called to the attention of those who so claim that, with the country at war, fighting for its very existence, extremities are commonplace. No war hysteria should prompt the adoption of basically unsound legal reasoning; neither should blind complacency or a false sense of the country's security cause the courts of the land to grant to those charged with preserving the nation less than the full measure of constitutional and legislative authority.

Before going into the determination of this case on its merits it is necessary to consider and pass upon certain defenses. It is first contended that the suit here is one against the United States, to which the United States has not consented. In support of this position the defendant cites: State of New Mexico v. Lane, 243 U.S. 52, 37 S.Ct. 348, 61 L.Ed. 588; State of Louisiana v. Garfield, 211 U.S. 70, 29 S.Ct. 31, 53 L.Ed. 92; State of Minnesota v. Hitchcock, 185 U.S. 373, 22 S.Ct. 650, 46 L.Ed. 954; Naganab v. Hitchcock, 202 U.S. 473, 26 S.Ct. 667, 50 L.Ed. 1113. I do not believe any of these cases warrant the court in dismissing this proceeding. While I, of course, acknowledge the general rule as laid down in each of these cases, it is a well-recognized exception that where the government acquires property from a party to a pending suit, its rights in such property are subject to the results of the litigation the same as would be those of an individual. See Ward et al. v. Congress Const. Co., 7 Cir., 99 F. 598; Philadelphia Co. v. Stimson, 223 U.S. 605, 32 S.Ct. 340, 56 L.Ed. 570; Miguel v. McCarl, 291 U.S. 442, 54 S.Ct. 465, 78 L.Ed. 901; Payne v. Central Pacific R. Co., 255 U.S. 228, 41 S.Ct. 314, 65 L.Ed. 598.

In the case of Work v. Louisiana, 269 U.S. 250, 46 S.Ct. 92, 94, 70 L.Ed. 259, the Secretary of the Interior was proceeded against for injunctive relief by the State of Louisiana to prevent the rejection of a claim to lands upon what was alleged to be an erroneous interpretation of the law. The opinion stated: "It is clear that if this order exceeds the authority conferred upon the Secretary by law and is an illegal act done under color of his office, he may be enjoined from carrying it into effect. Noble v. Union River Logging R. Co., 147 U.S. 165, 171, 172, 13 S.Ct. 271, 37 L.Ed. 123; Garfield v. Goldsby, 211 U.S. 249, 261, 262, 29 S.Ct. 62, 53 L.Ed. 168; Lane v. Watts, 234 U.S. 525, 540, 34 S.Ct. 965, 58 L. Ed. 1440; Payne v. Central Ry. Co., 255 U.S. 228, 238, 41 S.Ct. 314, 65 L.Ed. 598; Santa Fé Pacific Railroad Co. v. Fall, 259 U.S. 197, 199, 42 S.Ct. 466, 66 L.Ed. 896; State of Colorado v. Toll, 268 U.S. 228, 230, 45 S.Ct. 505, 69 L.Ed. 927. A suit for such purposes is not one against the United States, even though it still retains the legal title to the lands, and it is not an indispensable party. Garfield v. Goldsby, supra, 211 U.S. at pages 260, 262, (29 S.Ct. 62), 53 L.Ed. 168; Lane v. Watts, supra, 234 U. S. at page 540 (34 S.Ct. 965), 58 L.Ed. 1440."

In the recent case of Ickes v. Fox, 300 U.S. 82, 57 S.Ct. 412, 81 L.Ed. 525, it was sought to enjoin the Secretary of the Interior from enforcing an order, the wrongful effect of which was to deprive respondents of vested property. The question was made that the United States was an indispensable party but the Supreme Court held that such a suit could be maintained without the presence of the United States and that its decision rested upon the authority of many cases from that Court. Certain cases were cited among which were some of those to which I have referred.

It is further contended that the suit should be dismissed for lack of indispensable parties. It is urged that Carroll Badeau, the defendant, had no choice other than to comply with the order of the President and that he was acting purely in a ministerial capacity and that if the injunction would lie, it should have been brought against his superiors, even to the extent of making the President a party.

I think the action here is one in which the rights of the parties may be determined, where the injunction is sought against the agent with as much propriety as if it were sought to restrain the principal, had he been within the jurisdiction of the court. Osborn v. President, etc., of Bank, 9 Wheat. 738, 22 U.S. 738, 6 L.Ed. 204.

In the case of Ryan v. Amazon Petroleum Corp., 5 Cir., 71 F.2d 1, 4, and more particularly identified as the now historic "Hot Oil" case, the Circuit Court of Appeals said: "1. The Secretary of the Interior is not personally doing or threatening the acts of trespass and of prosecution which are sought to be enjoined. Although the actors may be authorized and...