Central Eureka Mining Company v. United States

• Decision Date: 12 July 1956
• Docket Number: 50214.,50195,50182,No. 49468,49693,49468
• Citation: 146 F. Supp. 476
• Parties: CENTRAL EUREKA MINING COMPANY (A Corporation) v. The UNITED STATES. ALASKA-PACIFIC CONSOLIDATED MINING COMPANY v. The UNITED STATES. IDAHO MARYLAND MINES CORPORATION v. The UNITED STATES. HOMESTAKE MINING COMPANY v. The UNITED STATES. (1) BALD MOUNTAIN MINING COMPANY, (7) Ermont Mines, Inc. v. The UNITED STATES.
• Court: U.S. Claims Court

146 F. Supp. 476

CENTRAL EUREKA MINING COMPANY (A Corporation) v. The UNITED STATES.

ALASKA-PACIFIC CONSOLIDATED MINING COMPANY v. The UNITED STATES.

IDAHO MARYLAND MINES CORPORATION v. The UNITED STATES.

HOMESTAKE MINING COMPANY v. The UNITED STATES.

(1) BALD MOUNTAIN MINING COMPANY, (7) Ermont Mines, Inc. v. The UNITED STATES.

Nos. 49468, 49693, 50182, 50195, 50214.

United States Court of Claims.

July 12, 1956.

Phillip Barnett, San Francisco, for plaintiff Central Eureka Mining Co. Ralph D. Pittman, Washington, D. C., and Rodney H. Robertson, San Francisco, Cal., were on the brief.

John Ward Cutler, Washington, D. C., for plaintiffs, Bald Mountain Mining Co., and Ermont Mines, Inc.

O. R. McGuire, Jr., Washington, D. C., for plaintiff Alaska-Pacific Consolidated Mining Co. Hogan & Hartson, Washington, D. C., and V. A. Montgomery, Seattle, Wash., were on the brief.

George Herrington, San Francisco, Cal., for plaintiff Idaho Maryland Mines Corp. Orrick, Dahlquist, Herrington & Sutcliffe, San Francisco, Cal., were on the briefs.

Edward W. Bourne for plaintiff Homestake Mining Co. James D. Ewing, Eugene Z. Du Bose, Edward E. Rigney, J. Kenneth Campbell and James W. Misslbeck, New York City, were on the briefs.

Kendall M. Barnes, Washington, D. C., with whom was Warren E. Burger, Asst. Atty. Gen., for defendant.

Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and LARAMORE, Judges.

LITTLETON, Judge.

In support of its motion for a rehearing in the above cases, the Government says that the court erred in holding that the issuance of War Production Board Limitation Order L-208 amounted to an exercise of the Government's wartime power of requisitioning or eminent domain because (1) in issuing L-208 the Government did not expressly intend or purport to exercise such requisitioning powers and (2) if L-208 was an "invalid" order, as defendant insists the court held it was, it conferred no right on the plaintiffs to just compensation. On the whole record the court is of the opinion that defendant's motion should be denied.

Defendant attempts to create the impression that this court held that the War Production Board purported to act under a single act, i. e., the Act of October 16, 1941, 55 Stat. 742, containing certain requisitioning powers, when it issued L-208, whereas, defendant says, the record in these cases will not support such a conclusion.

The court did not hold that WPB purported or intended to exercise any of its several requisitioning powers when it issued L-208. The court noted the various authorities actually cited at the conclusion of L-208 including Executive Order 9024, U.S.Code Congressional Service 1942, p. 49, which contained a delegation of the President's requisitioning authority conferred by section 120 of the National Defense Act of 1916, 39 Stat. 166, 213, 50 U.S.C.A. § 80. Beyond that, the court merely noted the various statutes in effect on the date of the issuance of L-208 which gave the Government wide powers to take private property needed by the Government to carry on the defense of the country in wartime, and held that under such a statutory scheme the Government appeared to have had adequate power to take what it in fact took from the plaintiff gold mine owners and operators.

On the matter of whether WPB "intended" or "purported" to act under any of the statutes giving the Government the power to take or requisition private property for war purposes, the court held that WPB purported to issue a priorities and allocation regulation; that to the extent that L-208 prevented the gold mine owners and operators from acquiring new equipment, material and facilities, L-208 was a proper priorities and allocation order, but that to the extent that L-208 denied those owners the right and clear authority which they and every other citizen have to make use of the materials, facilities and equipment which they owned and had on hand, in the operation of their legitimate and legal mining enterprises, L-208 had the effect of completely depriving them of a valuable property right. The court then held that because the Government had the authority to exercise the power of eminent domain and thus to deprive the gold mine owners of that property right, the Government must pay just compensation therefor whether this was done by the WPB in one form or another.

The court did not hold, as counsel for defendant says it did, that L-208 was an invalid order. The court held that to the extent that L-208 actually allocated scarce materials away from the gold mine owners and operators it was a valid allocation order, but that to the extent that it deprived the gold mine owners of the right to use their mining properties by "immobilizing" the materials, equipment and facilities owned by them and which they had on hand and needed to use to operate their mines, the order amounted to a temporary taking of their right and authority to profitably operate their mines.

The court expressly stated that an unauthorized taking is not compensable. It also stated that where there exists authority for a taking of a type of property and the Government, as it did here, takes that property, the use by the Government of a means of acquiring that property, which means was not specifically spelled out by some specific statute, does not relieve the Government of the obligation of paying just compensation, citing, among others, the case of Edward P. Stahel & Co., Inc., v. United States, 78 F.Supp. 800, 111 Ct.Cl. 682, certiorari denied 336 U.S. 951, 69 S.Ct. 878, 93 L.Ed. 1106. Where there is authority to take and a taking is accomplished, it is compensable. In the Stahel silk cases the Government had the statutory authority to take the plaintiffs' silk; the Government did not "purport" to exercise that power but rather it purported to exercise a regulatory power by issuing Order M-251 freezing or immobilizing the silk in the hands of the owners themselves until the Government should place mandatory orders requisitioning the silk. This freezing order was held to be a taking and, because the Government had the necessary power and statutory authority to "take" the silk, the court held that it must pay just compensation for it and it did so.

Defendant next attempts to analyze some of the requisitioning statutes noted by the court, in order to indicate that WPB did not in fact invoke any of those statutes when it issued L-208. This court did not hold that WPB invoked those statutes any more than it held that the Government invoked the requisitioning statutes...