Alpirn v. Huffman

Decision Date02 April 1943
Docket NumberNo. 435 Civil.,435 Civil.
Citation49 F. Supp. 337
PartiesALPIRN et al. v. HUFFMAN et al.
CourtU.S. District Court — District of Nebraska

John C. Mullen, of Omaha, Neb., for plaintiffs.

Joseph T. Votava, U. S. Atty., of Omaha, Neb., for defendants Jack Huffman, Russel Harris, and George E. Proudfit.

Joseph T. Votava, of Omaha, Neb., amicus curiae.

DONOHOE and DELEHANT, District Judges.

After due notice and hearing, the court has denied the prayer of the plaintiffs for the allowance of a preliminary injunction in this case. The implications of this action, beyond its significance to the parties litigant, prompt some reference to the incident that has evoked the litigation, and a summary statement of the reasons that have governed the instant decision.

The plaintiffs, father and son, operate, under the partnership style of A. B. Alpirn Company, in the city of Omaha, a scrap metal business, which has been in existence for fifty-one years. They buy, assemble and process for resale, chiefly to steel mills, scrap metal, iron and steel; and they also handle the sale of such commodities as brokers. In fact, the latter function seems, lately at least, to have produced much the greater part in tonnage of their business. In their local junk yard they employ two men for full time service, and one for part time duty and a lady for clerical work upon a basis regular, but limited in hours. A. B. Alpirn is seventy-two years of age and inactive in business. Morton Alpirn manages the concern but devotes a substantial amount of his time to the brokerage aspect of the firm's business.

Under date of March 1, 1943, in pursuance of the Act of October 16, 1941, 55 Stat. 742, as amended March 27, 1942, Title 50 U.S.C.A.Appendix §§ 721 to 724, and the regulations and executive orders issued thereunder, Metals Reserve Company, an agency clothed with adequate authority therefor, made two separate but concurrent requisitions of all scrap materials, about one hundred sixty tons in weight, located on the plaintiffs' premises and also all of the plaintiffs' machinery and equipment for the processing for market of scrap material, there, and in another storage space, located, including five or six metal shearing machines, a scale, a magnet and generator and a locomotive crane. These requisitions were directed to the United States Marshal (the defendant, Proudfit) who, on March 13, 1943, executed them by seizing and taking possession of the property which he placed forthwith in the possession of Aaron Ferrer and Sons Company as custodian for Metals Reserve Company and for the United States of America, by which custodian it was to be disposed of in connection with the production of materials needed in the war effort.

On March 19, 1943, the plaintiffs instituted this proceeding praying in the complaint and by motion, successively for a restraining order, a preliminary injunction, and upon final hearing a perpetual injunction against the removal of the seized property from the plaintiffs' premises, and against the interference by the defendants with the plaintiffs' alleged ownership or use thereof, and for general relief. Broadly, the claim is based at least in argument upon the asserted unconstitutionality of the seizure and certain irregularities in the procedure pursued in making it. No issue is made respecting the designation of Metals Reserve Company as an agency empowered by the President to exercise the statutory authority. Therefore, the steps conferring that power will not be discussed here, beyond the comment that their regularity is clearly shown from the records, orders and regulations submitted by the defendants, who are before the court.

Only the appearing individual defendants had been served with process so far as the files disclosed at the time of the hearing. A restraining order was denied by the senior judge of the district who, however, set the case down for an early hearing upon the motion for preliminary injunction in which both judges participated. That hearing was had and this discussion arises from it and the pleadings.

The Act of October 16, 1941, in its present form, as amended by the Act of March 27, 1942, clothes the President, during the national emergency declared on May 27, 1941, but not later than June 30, 1943, with authority to requisition (inter alia) machinery, tools, or materials, "whenever the President * * * determines that (1) the use of any military or naval equipment, supplies, or munitions, or component parts thereof, or machinery, tools, or materials necessary for the manufacture, servicing, or operation of such equipment, supplies, or munitions is needed for the defense of the United States; (2) such need is immediate and impending and such as will not admit of delay or resort to any other source of supply; and (3) all other means of obtaining the use of such property for the defense of the United States upon fair and reasonable terms have been exhausted." That sentence prescribes the facts whose determination by the President shall sustain not only his requisition of the property but also its disposition by him "in such manner as he may determine is necessary for the defense of the United States".

Touching the important question of reimbursement of the owner for the taking; the act first conditions the requisition "upon the payment of fair and just compensation for such property to be determined as hereinafter provided"; and in greater detail requires that: "The President shall determine the amount of the fair and just compensation to be paid for any property requisitioned and taken over pursuant to this Act and the fair value of any property returned under section 2 of this Act but each such determination shall be made as of the time it is requisitioned or returned, as the case may be, in accordance with the provision for just compensation in the fifth amendment to the Constitution of the United States. If, upon any such requisition of property, the person entitled to receive the amount so determined by the President as the fair and just compensation for the property is unwilling to accept the same as full and complete compensation for such property he shall be paid 50 per centum of such amount and shall be entitled to sue the United States in the Court of Claims or in any district court of the United States * * * for an additional amount which, when added to the amount so paid to him, he considers to be fair and just compensation for such property." The second section of the Act allows the return to the original owner in certain circumstances of property no longer needed for defense; the third section requires regular and frequent reports to the Congress by the President of his exercise of the power of requisition; and the fourth section allows him to exercise the power through directed or appointed departments, agencies, boards or officers.

While the complaint does not expressly assail the constitutionality of the Act of October 16, 1941, as amended, or the general presidential power thereunder, the argument of counsel upon the hearing might be considered as tendering that issue. It is not well taken.

The court considers that the Act is supportable, first, as the exercise of a power expressly granted to the Congress by the constitution, and, secondly, as the use of a prerogative of government inevitable from the very nature of the function of government. By Article I, Section 8, of the Constitution it is provided that the Congress shall have, among others, the power "* * * To declare War, * * * To raise and support Armies, * * * To provide and maintain a Navy; * * * To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States * * *; And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." (Emphasis added) Less directly, too, that section seems to place upon the Congress a substantial measure of authority in the making of provision for the common defense which, by the preamble, is a declared objective of the entire constitution. It would seem to be manifest that the erection of a uniform and equitable system of requisitioning of needed materials, equipment and tools should be regarded as proper for carrying into execution the power of Congress for the raising and equipping of armies and the provision for and maintenance of navies, and even more obvious that the practical exercise of the power of requisition should be committed to the President as an incident to his office and prerogatives as Commander in Chief of the armed forces. Indeed, quite independently of any congressional grant of authority, the power of requisition in emergencies incident to war has been held to rest in the President as a function of his miliary office. And the Act itself may be regarded in part at least as a recognition of that necessary power and the provision of a uniform and consistent pattern for its orderly administration.

In our jurisprudence the power of requisition of private property in the face of urgent military necessity has consistently been recognized, and certain canons for its exercise have been declared. Nor have the possession and actual exercise of that power been reserved solely to the Commander in Chief of the armed forces. In immediate and critical emergencies it has been allowed to subordinate officers. Thus in Mitchell v. Harmony, 54 U.S. 115, 126, 134, 13 How. 115, 14 L.Ed. 75, which involved an officer's requisition of privately owned property during the Mexican War, Mr. Chief Justice Taney, while denying the existence of the emergency then claimed, stated: "There are, without doubt, occasions in which...

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6 cases
  • Ken-Rad Tube & Lamp Corp., Owensboro, Ky. v. Badeau
    • United States
    • U.S. District Court — Western District of Kentucky
    • May 9, 1944
    ...judicial interpretation of the functions of the President in times of war or emergency. It is well said in a recent case, Alpirn v. Huffman, D.C., 49 F.Supp. 337, 341: "Defensive measures which, a century ago, might have awaited deliberation and the orderly course of judicial process, must ......
  • Youngstown Sheet & Tube Co. v. Sawyer
    • United States
    • U.S. District Court — District of Columbia
    • April 29, 1952
    ...involved a war statute, and no rights had been taken or threatened to be taken which required review of the Board's order. Alpirn v. Huffman, D.C. Neb., 49 F.Supp. 337; but that likewise was under a statute authorizing the President during the national emergency to make requisitions. United......
  • In re Spier Aircraft Corporation, 8340.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 4, 1943
    ...have been made in this war under the statute in question. In re Inland Waterways, Inc., D.C.Minn. 1943, 49 F.Supp. 675; Alpirn v. Huffman, D.C. Neb. 1943, 49 F.Supp. 337. But even if the action taken were reviewable, appellant has not shown that there was an abuse of discretion. The apparen......
  • United States v. 3.65 A. OF LAND IN CITY OF ST. LOUIS, MO., 2496.
    • United States
    • U.S. District Court — Eastern District of Missouri
    • January 13, 1944
    ...is fortunate, for if it were open, the ensuing delay would delight our country's enemies." (Emphasis added) In the case of Alpirn v. Huffman, D.C., 49 F.Supp. 337, 341, the government corporation seeking condemnation of the property involved was "The Metals Reserve Company". The District Co......
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