George Cochran Doub: -- placed the limit – from production of articles stating an industry could only produce 25% of what it had produced before, but many of them were prohibitory and prohibited the manufacture of articles whether bicycles, stoves or gold mining. This is what John Lord O'Brian said in his article in 13th George Washington Law Review as to these L orders. “Early in 1942 there issued a group of limitation orders, the L series which in the space of a few months completely converted American industry from a peace time to a war time economy. It is doubtful of any serious of legislative or executive orders in this country ever produced a more far reaching change in so short of time.” Now it's a tribute to that board and its general counsel that their orders and procedures were so well and fairly handled that prior to this decision of the Court of Claims not a single order of the War Production Board was ever invalidated by any court.
Speaker: (Inaudible)
George Cochran Doub: No, no not all.
Speaker: Not at all?
George Cochran Doub: Not at all.
Speaker: (Inaudible)
George Cochran Doub: Yes, because the second paragraph of the order forbade them “from consuming or using any materials in the production of gold.”
Speaker: (Inaudible)
George Cochran Doub: But I thought you were talking, addressing yourself to the first provision of the order oh, no I would say -- you mean if there had been no orders?
Speaker: What I am asking you if you eliminate from this order the first condition and the (Inaudible) requiring closing down could the companies or any of them that continue to operate despite the restrictions on their materials and procurement requirements.
George Cochran Doub: Well then if you -- forget the first provision and then forget the second provision that I mentioned, I think they could have continued. Now there had been some prior restrictions that they were suffering, living with prior to this order that had cut their production, I don't recall the number of tons but I know the labor force had been reduced over a period of the first six months of 1942 or rather down to October '42 it had already been reduced quite materially. But the effect of this order was to reduce it by 19000 men to 6500 and I think it had been up to about 25000. They could have, they could have continued yes and they undoubtedly will continue consuming critical manpower and consuming critical materials desperately needed elsewhere for our war effort, but I'll come to that, I'll say more on that in a moment.
Earl Warren: Well Mr. Doub may I ask this just to reduce it to absolute minimum? Suppose you had a one man mine and the miner himself the owner wanted to work him there without to -- maybe with day wages or little more with -- without using any critical materials or anything else that was proscribed by the government, could he do it --
George Cochran Doub: That -- under that order?
Earl Warren: Yes.
George Cochran Doub: Well there is a -- he wouldn't have fallen within the scope of this order.
Earl Warren: Well that's what I wanted to know.
George Cochran Doub: Yes.
Earl Warren: And therefore he could work it as I understand --
George Cochran Doub: He could have worked that, yes. Now not a single business before coming down to this order I want to talk generally for a few more minutes about what the War Production Board did, now not a single business in the United States prejudiced by these other orders obtained any compensation for their lawsuits. For example in St. Regis Paper Company case and it had a loss of $3 million because of an order prohibiting the consumption of pulp wood by any paper company in a certain geographical area. And that prevented its plants from obtained pulp order and the Court of Claims held the order was a valid war time regulation under the statutory power to allocate materials and facilities and was not a taking of private property and you denied certiorari. And then in Orofino case, the Court of Claims was dealing with this very order L-208 which shut down, had the effect of shutting down the Orofino Gold Mines.
William O. Douglas: How did they distinguished that from (Inaudible)
George Cochran Doub: Well the Court of Claims attempted to distinguish it Mr. Justice Douglas on the ground that a more complete record had been made in this case by the respondents which you find in this monstrous record includes all the records of the War Production Board. You find in the Orofino case the members of the Court of Claims were unanimous in holding that was no taking of private property.
William O. Douglas: But they opened (Inaudible)
George Cochran Doub: Well I think they overruled it.
William J. Brennan, Jr.: Mr. Doub, the statute here that extended the period of limitation, was it not (Inaudible) gold mining industry.
George Cochran Doub: Yes sir.
William J. Brennan, Jr.: If this judgment of the Court of Claims was sustained except for the gold mining industry is there anyone else that could take advantage of the same theory under the L-orders, any other industry?
George Cochran Doub: No, but you'll open up Pandora's box because everyone that owned private property or private business had suffered injury during the war, will come into Congress asking for special legislation and they certainly would be entitled to it because as I propose to show this industry which is one of the -- because gold happens to be effective for the public interest and is the last, not the first industry to be given and singled out this unique preferred treatment.
William J. Brennan, Jr.: But any other industry would, would have the same kind of competition as security (Inaudible) legislation --
George Cochran Doub: It would have to be a matter of grace, there is no way they could recover now. Now why was limitation--?
Felix Frankfurter: Was this, was this, is this -- this was a Special Jurisdictional Act, was it, the reference --
George Cochran Doub: Yes sir.
Felix Frankfurter: Gold mine claims --
George Cochran Doub: That's right.
Felix Frankfurter: And there has been no other Special Jurisdictional Act going out of or industries board orders.
George Cochran Doub: No, I know of none.
Felix Frankfurter: So this Pandora's Box evidently Congress sought it that it is only -- evidently can't resort there was a problem, I am not saying they indicated any answer.
George Cochran Doub: Well --
Felix Frankfurter: There is something – there was a problem.
George Cochran Doub: Your Honor no statute is passed until the Court of Claims on the pleadings in denying a motion of the United States to dismiss this compliant, the Court of Claims reversed itself. The Orofino Case and said the plaintiffs have stated a cause of action and it stated a case of a taking if they could sustain the allegations of their complaints. Then Congress passed this special act because they are great -- there were many gold mining companies who hadn't brought any suits. They didn't think there was any, they had a case and obviously if Idaho Maryland mines had a cause of action, every other gold company within its order had a cause of action.
William J. Brennan, Jr.: Did all other gold companies within the order bring action?
George Cochran Doub: Well there are 150 cases in the Court of Claims now and I think the amounts claimed aggregate about 50 million. Now why did the War Production Board issue this drastic order? In the summer of 1942, the shortage of labor in the non-ferrous metal mines for copper, lead and zinc had reached such a point that the inadequate production of essential materials had become a threat to the entire war effort. Sources of large supplies of alloy materials like chrome and manganese had been cut off by enemy action. Mining equipment was pitiably short of our requirements in these copper mines and lead mines and yet the success of our whole armament program depended upon the increased production of raw material such as copper, lead and zinc. There were not enough miners in the non-ferrous metal mines. Six thousand of them had pulled out and gone to the shipyard and other war industries offering higher wages, others had been drafted into the armed services and as Secretary Forrestal said, the gold miners constitute the last reservoir of skilled mining labor in this country. Now it was reported to the War Production Board in September, that the loss of another 5,000 or 6,000 workers in the copper mines might so prejudice fabricating processes that 100,000 workers in war plants would be affected. And in July 1942, the production of copper had dropped by 1,000 tones. Now, this order was issued on October 6, 1942. The memorandum to the War Production Board, of one of its bureaus, September 9, 1942 estimated that sizeable amounts of critical materials would be saved in closing the gold mines. In one year they had spent $17 million on materials and supplies, $7 million for fuel and electricity. Another memorandum, two days later develops that whole business of the conservation of materials. A report for the minutes of the meeting at which this order with issued, and it had been under discussion for a month or more. It was recommended by Under Secretary Rob Patterson, Under Secretary the Navy Forrestal. Patterson said the situation was so alarming as to the shortage of miners and the production of copper, the army was about to call our soldiers to go back and work in the copper mines. He said this is a hard step for the army to take, but the effect of this step and others will not give complete relief if nothing is done to transfer gold miners to copper mines. Now the minutes of this meeting when the order was issued, refers exclusively to the necessity of closing the gold mines in order, in the hope and belief and expectation that its miners would go to the non-ferrous metal mines, where they were desperately needed. I might say that the government had no power to draft men to work in mines or to make them work anywhere they didn't want to work.
Speaker: Could I ask you a question to clarify my own mind? Are you asking us to reverse the findings of the Court of Claims or are you contending that on the basis of those findings, you're nonetheless entitled to a reversal?
George Cochran Doub: It's the second.
Speaker: On the second?
George Cochran Doub: It's the second. Mr. Justice Harlan, the testimony in this case is undisputed. There is no controversy as to facts. Their only argument here is whether the respondents are entitled to go behind the face of the order and assert as they do assert that the only purpose of the order was to bring about a transfer of these skilled miners from the gold fields up to the copper mines, and that's not important in our view of the matter. The Court of Claims said the paramount purpose was to do that. We think undoubtedly a major purpose was to do it. We don't think it's important, and we don't think that the Court of Claims, we don't think the Court of Claims had any power to do what they did in this case. They proceeded to say this, 15 years after this order and after the war, they proceeded to review and evaluate the wisdom of this executive action. They concluded that L208 “Was not in fact necessary to the successful prosecution of the war.” It was not devised for the purpose of conserving or allocating materials, but it was ill conceived, unwise and unsuccessful, thus substituting its judgment for that of the executive, and all that in violation of established limits of judicial inquiry into legislative and executive action.
Charles E. Whittaker: (Inaudible)
George Cochran Doub: I don't know whether -- no. I say it's purely a question of law as it made the judiciary proceed to express its -- such views as those, I say no. You said -- this Court said time and again, you will never express such views as the action of the executive and I think properly so.
Charles E. Whittaker: (Inaudible) gold mines not finding what conclusions and relevant to that?
George Cochran Doub: Well I think they are a perfectly a relevant conclusion. It doesn't make any difference whether the order was successful or not. It doesn't make any difference how many men actually transferred to the metal mines. It doesn't make any difference whether the hopes and expectations of Secretary Rob Patterson and Forrestal in the Army, and the President would realize or not. Actually I'll show that --
Speaker: Surely the Court of Claims is entitled to look at what purports to be something other than the taking and to say in legal effect it was taking?
George Cochran Doub: Of course Your Honor, that's what I'm coming to, I'm coming to legal --
Speaker: That's legal isn't it?
George Cochran Doub: Legal conclusion and I'll show you why it was not a taking. It wasn't a taking under any decisions of this Court. It wasn't a taking as a matter of social justice and it wasn't a taking under, I think any modern philosophy of private property. I might say this, that the Court also placed its opinion on highly technical grounds. They said this that L208 exceeded permissible regulation because no provision was included that machinery and equipment and material made idle would be held for the use of the government, and the L208 did not require that the owners deliver their material to essential users. The Court of Claims reasoned then that L208 didn't go too far, that it didn't go far enough. That if it had contained such a provision as they complain about, it would have been a valid regulation and yet they overlooked the fact that by amendments in November of 1942, this Act, the War Production Board had included the very provisions that they complained were in the order. Now, why do we submit that this is a -- not a taking of private property for public use? For instance, we say you do not have the necessary elements of a constitutional taking for it. There was no acquisition of property. The United States didn't seize the gold mines. This isn't a Pewee Coal case or a Youngstown Sheet & Tube case. We didn't occupy the property. We didn't take possession of the mines. They were -- we took no gold. There was as much gold when that order was lifted, as when it went into effect. There was then but a temporary and consequential diminution of value, and we say as a result of this regulation, but the government didn't dispossess the respondents of title or possession. We didn't appropriate any tangible personal property either or dispossess them of that.
William J. Brennan, Jr.: (Inaudible)
George Cochran Doub: Well they have never gotten the question of damages, so that's not --
William J. Brennan, Jr.: (Inaudible)
George Cochran Doub: No, that wasn't discussed Mr. Justice Brennan. So if everyone of the cases today, where there's been a recovery for a taking of property under the Fifth Amendment, there has been a physical seizure, a physical occupation, a physical taking, if not of entire entries, at least of some entries. For example, there are cases like inadvertent flooding of property, the Dickinson and Cress cases, but that was a taking, that was a physical invasion of the property, low flights of government aircraft, destroying use, that was a taking of a servitude, imposition of a physical servitude upon the property, destroying use by firing projectiles over the property, Portsmouth case, that was a physical servitude. So, what are we dealing with here? We're dealing with a regulation not directed to one or two companies but it covered in its scope the entire continental United States and Alaska. It covered all gold mining companies within its terms. It fell upon the just and the unjust. It was published in the federal register, there was no discrimination, there was no inequality, and it affected did not a few companies but affected 252, entire industry. Now we say there was no taking of properties. As Justice Holmes said in Truax against Corrigan, “delusive exactness is a source of fallacy throughout the law by calling a business property you make it same like land, nothing on more deprecate than the use of the constitution to prevent the making of social experiments though few are even of obnoxious to me.” And Cardozo said, “Property like liberty has been taught that some of its most cherished immunities are not absolute, but relative. That the owner of land might find himself restricted in emergencies as a means to social justice. Zoning laws we prohibit use, certain kinds of use which may add up to the value of the property almost and there is not even an emergency involved and it is done not temporarily in war time but on a permanent basis.” In Nebbia against New York you will find that this Court gave the most careful and comprehensive consideration of property rights that you'll find in any of the cases. And you said this, neither property rights nor contracts rights are absolute for government cannot exist if the citizen may at will to use his property to the determent of his fellows. The Court has, you said this, the Court has repeatedly sustained the curtailment of enjoyment of private property in the public interest. The owners' rights maybe subordinated to the needs of other private owners whose pursuits are vital to the paramount interest of the community. Now here you had a case where an industry wasn't merely unnecessary to the war effort but it was obstructing the war effort by burning up and consuming critical manpower and material desperately needed for our national safety. And their product gold was as immaterial to that war effort as if they had been producing snowballs or nothing at all. Now they say this is a taking because you prohibited our use. Well it wasn't a taking when we prohibited liquor and even near beer during the First World War as a war measure. It wasn't a taking when state say prohibited a healthy nutritious substance only a modorum inherently that have helped them. It wasn't of taking when states have prohibited the production of petroleum like constituted waste, Champlin Refining Company and this was waste. Judge Magruder pointed out in Wilson against Brown that in the regulatory field the power of imminent domain is not involved. It's -- other constitutional principles are involved. And that's why we say the real issue here is due process. Was the regulation arbitrary and capricious and unreasonable? What was the legal right which the government invaded? Was it a constitutional right to engage in the business of mining gold, although that business was detrimental to the nationwide struggle free and immune from the sacrifices of war? Well if a legal right was invaded, what other legal right could it be? What kind of an enterprise was this? For two decades the sole market for gold in the United States was the United States government and that's the market today. Under the Reserve Act of 1934 the acquisition of gold, the transportation of gold, the treatment of gold, the possession, sale import, export was all subject to regulation, licensing by the treasurer. So anyone engaging in that business did so subject to its peculiar nature, subject to the fact that gold was affected by the public interest. Now these gold mining companies had invaded the federal fields, they placed a drag, a drain on this nation's struggle for survival. They had no constitutional right to operate in a dream world of their own immune from the burden and sacrifice of that struggle. The Attorney General Homer Cummings said in a Gold Clause Cases right here, these claimants were upon federal territory, they were squatters in the public domain. I say he had not constitutional right to conduct what under those conditions I describe temporarily was a parasitic industry. We didn't have -- the nation didn't have to carry that burden on its back when farmer Jones couldn't prevent his son from being drafted into the war.
Charles E. Whittaker: Have you see in Section 66, Statute 605, any Congressional codification of the same position you are now taking namely that this was not a taking of the property?
George Cochran Doub: Are you referring to the Special Reference Aact?
Charles E. Whittaker: Yes, dealing especially with gold mines.
George Cochran Doub: Are you referring to the act, are you referring to the act that conferred jurisdiction on the Court of Claims to hear this case?
Charles E. Whittaker: To hear this or any other case respecting gold mines alone, contemplating not compensation for taking but damages for obstruction. I then ask you if you see in that statute supports for your position a -- Congressional complications of the national policy that would be L-208 was not a taking of the gold. It seems if I may suggest it seems to me that is the codification for public policy by Congress, but it does then go on and say that the Court of Claims shall have jurisdiction to avoid damages not from a taking but for the obstruction to the gold mine.
George Cochran Doub: Well as I interpret the Special Reference Act I don't think that Congress attempted to define the approach of the Court of Claims or to limit their consideration as to any of the defenses or as to any asserted rights. I think they left it to the Court of Claims to determine whether these people after eliminating latches, limitations, perhaps estoppable could make out a case for compensation. I don't think that the --
Felix Frankfurter: Compensation for what?
George Cochran Doub: Compensation for we interpret to mean a taking a private property for public use, because that --
Felix Frankfurter: Can I ask you this Mr. Doub --
George Cochran Doub: Sir.
Felix Frankfurter: May I ask you this, there have been other jurisdictional statutes like this in which there was controversy about court taking and the -- or private bills introduced, and I think after the First World War, after Civil War too, and Congress then passed acts referring the matter, I am purposely using a vague phrase, referring the matter for determination by the Court of Claims. My question is this, in other cognate or similar statute dealing with this general problem of making good loss incurred through governmental inference at time of war, is this the stock phrase which to me it raises problems which Justice Whittaker question implied as to my hearing is this the stock phrase because for losses incurred because of the closing or curtailment or prevention of operation, as a result of the restrictions imposed, that as Justice Whittaker question just indicated hardly the language for asking ascertainment whether there was taking, and I want to know whether you've made a profit or you've made -- had a study made of commonly similar authorizing statutes to find out -- imposing upon the Court of Claims, the jurisdiction of determining lawsuit as a result of a restriction, what does that mean, what is the legal criteria --
George Cochran Doub: Well I am not --
Felix Frankfurter: -- that Congress has thereby imposed upon the Court of Claims because to repeat, it is hardly the language of ascertaining whether there was a taking under the Fifth Amendment?
George Cochran Doub: Yes. I have not made that analysis Mr. Justice Frankfurter. I might say that not a single member of the Court of Claims, who are all accustomed and experienced in dealing with these special reference acts, accepted the contention of the respondents that this Act created a liability per se.
Felix Frankfurter: Well a lot of those statues --
George Cochran Doub: By the United States --
Felix Frankfurter: You can correct me, but not a lot, some of those statutes are referenced to the Court of Claims, specifically refer a claim by the ABC Company, isn't that true? It just says, would you please pass on the claim of so and so.
George Cochran Doub: I think that's true.
Felix Frankfurter: So that I should think the particular wording of this statute, provokes serious question in my mind as to what it is that the Court of Claims was asked to do and if they didn't raise a question, whether this was a judicial reference which alone is capable of being reviewed here under the case or controversy or whether it was a Santa Clause reference.
George Cochran Doub: Well it was certainly handled on the floor of the House in the Senate as though it were a perfunctory judicial reference to have the Court determine whether they had a legal claim because there was no discussion of it on the House of the floor.
Felix Frankfurter: Is there a report?
George Cochran Doub: Yes there was a --
Felix Frankfurter: I haven't read your brief or of the other side's brief, what does the report say?
George Cochran Doub: Well the report uses language that in some respects gives some comfort to the respondents and it also gives some comfort to us. At the last part, beginning on page five of our reply brief, we discuss this point. You'll find on page seven, a quotation from the Senate and House Reports. It says, at the present time many other claimants, this is after referring to this decision of the Court of Claims in Idaho0Maryland, that on the pleadings the complainants there, had stated a case for just compensation. They say at the present time many other claimants who have a better right for an adjudication of their claims, as does the Idaho Maryland Mines Corporation, may not prosecute such claims due to the running of the statute. Many other claimants after the ruling in Orofino undoubtedly felt that the file in the Court of Claims would be useless, and therefore allowed this statute to run against them. So you see this bill, which passed was introduced after the Court of Claims had decided that on the pleadings there was a taking and titling the claimants to just compensation. So it wasn't necessary for -- so we say that Congress made it clear, it tried to open up this thing to everybody else, similarly affected. I would like to save ten minutes. I just like to say this in conclusion here, if the -- this order had an impact that went far beyond the gold companies involved, it put communities out of business, property values in localities near the mines were destroyed, rental values were destroyed, shop keepers lost customers, business if not property and none of those people, none of those communities can recover for the consequential indirect damage which they sustained, and yet the respondents, the gold companies who were operating a business affected by the public interest claim they are entitled to compensation. So we're singling out this industry, operating a noxious business, now gold isn't noxious of course, but I say the production of gold or any other unnecessary immaterial commodity in war time when our national safety is involved, when it's consuming critical manpower and materials which we must have elsewhere, I say that, that definitely is noxious. It was detrimental to the public welfare. It was a reasonable exercise of national power in the national interest and this industry affected by the public interest, should not be singled out for special consideration.
Earl Warren: Mr. Bourne
Edward W. Bourne: If the Court please I would like to clear up a little bit as far as this matter of the Special Jurisdictional Act because I think possibly, quite unintentionally Mr. Doub, developed a little confusion on that subject although I think what he said at the end was completely correct. The suits bought by these respondents were brought before the passage of the Special Jurisdictional Act. We're here in this Court -- we would be here in this Court even if there were no Special Jurisdictional Act. Then after the pleadings were sustained in some of these cases, but in the opinion and what's called the Idaho Maryland case, Congress passed this Special Jurisdictional Act as a result of which the other claimants, who had not filed, were permitted to do so. Now, there was no decision that there was not a taking. I'm not going to argue that was a decision, that there was a taking, but there certainly was no decision that there was one. Mr. Doub's reply brief, rather poopoes the reports of the two committees, and particularly the quotation in those two reports of a prior report of a subcommittee of the Committee of War Claims which was never approved by the whole committee of the War Claims. But I'm prepared to say that I think his statement for present purposes of argument, that we can each get some comfort out of those committee reports, is a bare one and the -- one of the two committee reports are identical, one of them is in the record in full, and we've quoted those portions of the report that we think are most persuasive and Mr. Doub has quoted those that he thinks ought to be persuasive against this.
Hugo L. Black: Where is the report in full?
Edward W. Bourne: The report is -- plaintiff's Exhibit 178, page 1559 of the record, volume two.
Felix Frankfurter: May I trouble to state on what legal ground you're standing here or grounds of --
Edward W. Bourne: We're standing --
Felix Frankfurter: I want one ground for standing --
Edward W. Bourne: We are standing on both grounds Your Honor. Our principal argument in the Court of Claims and our principal argument here has been that there was a taking. We make the further argument that whether that was a taking or not, we're entitled to recovery under the Special Jurisdictional Act.
Felix Frankfurter: And the Special Jurisdictional Act is based on what criterion for judgment by the Court of Claims?
Edward W. Bourne: We think that the only criterion for judgment by the Court of Claims is a proof that there was a loss as a result of the closing down of the mines. Nobody could recover, if he was all out of critical materials. Nobody could recover if all his employees had been drafted, but that he was shut down then we think the Congress intended to give him a right of recovery. Now what happened is that in the Court of Claims the Court of Claims decided in our favor on the taking point and said that it was a necessary to decide the other point and Mr. Doub like to use it that was equivalent to an adverse decision. We don't agree with that. He is correct --
Felix Frankfurter: You can hold your judgment here on any grounds.
Edward W. Bourne: We asked to hold the judgment here on any ground that –
Felix Frankfurter: He can hold the judgment here on any ground and he could?
Edward W. Bourne: That's exactly right Your Honor and you in response to a question that Your Honor put you will find a detailed review in our brief of the Special Jurisdictional Acts. Now I beg leave not to go into that detail now because it is after all only one aspect of the case –
Felix Frankfurter: It is in your brief --
Edward W. Bourne: That's in our brief. It's in the last point and contains a very extensive study.
Felix Frankfurter: What about my question Mr. Bourne that if you -- if you are restricted if one is confined to, if one rejects the taking argument and is confined to the jurisdictional statute, the basis for judge that this a reference to the Court of Claims which the Congress may make as a matter of grace it may give you that but if it isn't the nature of what is a case or controversy you can't review it. You would -- practically that will be all right for you, but I --
Edward W. Bourne: I haven't considered that point at all sir, I haven't considered that point all.
Felix Frankfurter: For instance like the Indian -- there is an Indian statute in which Congress allows the commission or in other words give justice to make determinations as a matter of equity, well as matter of equity in that thing doesn't mean chancery equity in a practical sense. In other words, Congress means that the commission as an agent for determining whether it will give a (Inaudible) to somebody instead of using a Committee of Congress and if it does that then we can't review it, because --
Edward W. Bourne: But you still have power I take it to interpret the law and see whether that's what those statutes say.
Felix Frankfurter: Well certainly, certainly.
Edward W. Bourne: Now I would like to say this much, because I think this is very important. You heard a short speech on the fairness of this order in the eyes of Assistant Attorney General. I am not going to take the time to read what the committees' -- the Judiciary Committees of the House and the Senate said about the history of this order what it did, nor am I going to take the time to discuss the prior report of the Committee on War Claims which was quoted in full, practically in full by the two committees. Now they dispose of those reports in their briefs as saying reports, opinions of representatives of mining states. These were the committees of the House and the Senate who said they had considered the matter very carefully and they have the benefit of a full hearing before the sub-committee or the Committee on War Claims. So they went into the facts and I am going to say later in no unmistakable language that there is an issue in fact in this case and I point out that when they went into the text, they pointed out that it was most unjust not to provide compensation for these companies, individuals, a 150 in number, some large, many small, most small, who were singled out and deprived of their right to use their property in order that their labor could be thrown on the market and for no other purpose as I will show you shortly.
Charles E. Whittaker: (Inaudible)
Edward W. Bourne: Well there would be at least one difference Your Honor and that is that in the case of the taking, if I understand the law, you are entitled to the value of the property taken with interest in the date of the taking. And –
William J. Brennan, Jr.: (Inaudible)
Edward W. Bourne: Sir?
William J. Brennan, Jr.: What will have to be taking?
Edward W. Bourne: Taking, taking was the right to use, right to mine the gold. That was, that was the property taken as a right to mine gold, I don't know whether I'll have an opportunity to go into that, but I think that --
William J. Brennan, Jr.: (Inaudible)
Edward W. Bourne: Well I think you would --
William J. Brennan, Jr.: (Inaudible)
Edward W. Bourne: We certainly -- I will but frank in saying that we certainly would expect a claim that we are to be put in the position we would have been in if the order have never been issued.
William J. Brennan, Jr.: (Inaudible)
Edward W. Bourne: What would happen if we had operated?
William J. Brennan, Jr.: in other words (Inaudible)
Edward W. Bourne: Yes.
William J. Brennan, Jr.: (Inaudible)
Edward W. Bourne: That's what we would claim but may I, I have a note to answer your question, it was put to Mr. Doub and that is that there has been no decision whatever here about damages. The procedure as I am sure Your Honor knows in the Court of Claims is that you have a judgment whether or not there is a judgment and then you have a decision later as to damages. Now what I was going to say was that if under the Special Jurisdictional Acts, in the absence of something that's completely plain there is no recovery of interest, but we think there would be a recovery of interest if there was a taking.
William J. Brennan, Jr.: (Inaudible)
Edward W. Bourne: Well I'd rather not have to be -- try to answer that explicitly sir to say that they may -- might argue that the special jurisdiction act has some more limited effect as to damages, but we are here only as to whether or not there is a right of recovery, and our first point is there's right of recovery because of the taking. Our second point is that there is a right of recovery anyhow because the Special Jurisdictional Act granted this one.
Hugo L. Black: That meaning if I understand you say that Congress by the passage of this act admitted claim against the government for whatever damages you can prove?
Edward W. Bourne: Yes sir. Now I would like to dispose some other details first before I go into my own affirmative presentation which I will try to cover as much as I can. Mr. Doub I am sure gave a sort of special sanction to this order by referring the fact Mr. John Lord O'Brian was the general counsel with WPD and quoting at great length or considerable length from an article he wrote about the performances of the WPD. And I would suppose that this Court knowing the reputation of Mr. John Lord O'Brian would assume that any order that for which he was responsible was probably a sound order, but I'd like to call your attention to the fact that the government's counsel in the Court of Claims when he gave the list of witnesses who were going to testify for the government said at one point the next witness will be Mr. John Lord O'Brian, General Counsel of the War Production Board and Mr. John Lord O'Brian was never called. Another witness we referred to earlier was Mr. I. N. P. Stokes who was Assistant General Counsel of Orders and Regulations of War Production Board and Mr. I. N. P. Stokes was never called. Now I don't think that Mr. John Lord O'Brian can properly be brought here as a sort of a witness in the background in support of this order or in support of the theory of no liability or in defense of what was contained in the order to which I will refer very shortly. Mr. Justice Harlan inquired whether these respondents could have continued if there had not been any order L-208 the answer is that the findings as to three or four of the respondents are that they could have continued throughout to June 30th of 1945 and the findings with respect to the other two are not so explicit, but that they are that they were shut down. All was shut down by the order. Mr. Justice Douglas inquired whether the Orofino case had been distinguished or reversed by the Court of Claims? It was distinguished. It was distinguished on the ground that in the Orofino complaint there were conclusory allegations, and only conclusory allegations. Whereas in the Idaho Maryland opinion which is the one dismissing the motions that -- dismissing the demurs with respect to Idaho Maryland and Homestake and one other company, the Court dealt with the detailed allegations and it said we are not bound by your penal opinion because nothing was pleaded at the conclusions. Now, I must protest against the references to the gold mines and to gold mining, as if there was something evil, noxious, unpatriotic or whatnot about it during World War II. We all know from our own experience that all manner of non-essential industries were permitted to continue. Gold mining was a non-essential industry, but it was permitted to continue, and there is nothing remotely similar and gold mining is nothing, not all similar to the production of liquor or the margarine or anything that's noxious. At the very meeting of the WPB at which this order was authorized, there was a discussion of the fact that gold mining machinery and equipment was being sent to South Africa, Canada, Columbia and Honduras, and the government says I think with some justification that in the case of South Africa, whereas you recall General Smuts just held the bear balance of power. It was wise public policy to send our gold mining equipment and enable the government to continue, but what about Honduras? How can the government say that we should have said gold mining to Honduras, and the gold mining equipment, gold mining equipment to Honduras and then it's noxious? The government wanted hard rock miners, which it thought would be useful, and I'll come to that, and that's all that was. The situation so far as not essentiality and discrimination was precisely the same as in innumerable other industries using skilled workers. We had a system of selective service. We had a system with priorities allocations and we had no system for the labor draft. And this L208 was a kind of a special labor draft of its own, applied to one group of companies and individuals. And being a special one and being as they say the Court of Claims found; unwise and ill conceived, it proved to be a tragic failure. And that's why the Congress said what it said, not only because thing was unwise in the first place, but because it proved to be a failure. Not because as Mr. Doub generously admitted of any failure on the part of the gold mining companies to cooperate, they cooperated to the fullest degree. Now it's true they didn't bring any injunction actions, but they did marshal what I would have supposed, would be the strongest representation that they could possibly have hoped to get. 21 United States Senators who wrote a long letter to the President shortly after the order was issued, protesting, pointing out why it was no good, protesting that it was being done, telling what it was going to mean to place like (Inaudible) and Deadwood, North Dakota; where 19,000 people were dependent upon one mining company, but that ended up with this, and I think this is one paragraph I want to read if I never get a chance to read another, it was the last one, this was addressed to the President. We respectably bring this matter to your attention with the request that you stay the order made by the War Production Board affecting the gold mining operations of United States, at least until the whole subject of the marshaling of manpower and the allocation of labor maybe considered and the vital questions involved concluded. Thus that the gold mining industry may not be subjected to unwarranted and unusual hardship and injury which may not eventually be considered necessary and which may not be equitability gone by other industries. There is one other thing that I do want to read if I -- I'm not going to able to -- excuse me sir.
Speaker: what is the citation (Inaudible)
Edward W. Bourne: That in finding 52, it starts at the bottom of record, page 110. That is that paragraph, is it not (Inaudible), that paragraph starts bottom of page 110.
Felix Frankfurter: Mr. Bourne I'm sorry to -- but I have to interrupt you for parity sake.
Edward W. Bourne: I understand Your Honor.
Felix Frankfurter: The course of your argument, like the opinion of the Court of Claims in Idaho on the demurral, seems to me to be an argument or a claim not of a taking, but of a challenge of the exercise of the power by the board, so unjustifiable, so basic, as to constitute a taking of property without due process of law. What it then goes on to say, having been that it was a taking, but from the point of analysis, the fact that there was a violation of the due process clause doesn't seem to me to be the equivalent of a taking for which compensation is to be given, and therefore it does seem to me to make an important difference whether this is a review authorized by Congress of what although not a taking, is subject to review by the Court of Claims which has no power to pass on a tort claim, except and unless the Congress authorizes it to make such a determination. Everything you've said and everything that the -- as I have now just read for the first time, the Idaho Maryland Mining Company case goes to the proposition that this was baseless, this had no warrant in the exigencies of a war, giving every breath of decretory power to the Board.
Edward W. Bourne: Well I'm afraid I'm a flaw in this respect Your Honor and that is Mr. Doub has perhaps with some skill deflected me into the line that you've been taking about. You will find very fully developed in our brief, the proposition that this constituted a taking.
Felix Frankfurter: All right.
Edward W. Bourne: And we've also developed the proposition that it constituted -- that it was an authorized taking, that there was authority not --
Felix Frankfurter: So that's essential, you happen to have authority implied not as a matter of fiction, but as a matter of fact, isn't that true?
Edward W. Bourne: The basis very simply stated Your Honor is that the President had the authority and that the President approved the action of the WPB, but I had to deal or what I should deal with the proposition that this is noxious, that the gold mining was noxious. Now, even though I would like to go in to the legal propositions.
Felix Frankfurter: Would you read -- would you be if the Congress of the United States had passed a statute forbidding the mining of gold during the war?
Edward W. Bourne: I don't know Your Honor. I don't know.
Felix Frankfurter: It's a fair question, what I hope was a fair -- I hope it's a fair question.
Edward W. Bourne: May is say this Your Honor, I want to say this much, either this taking things out of order. Essentially this is what happened. The war department told the WPB, they wanted the gold mine shut, and the war department decided to shut the -- and the WPB decided to shut the gold mine. They decided to camouflage what they were doing and I use my words advisably, and we prove it by findings. They decided to camouflage that in the preamble, they said whereas because of the shortage of the critical materials for export et cetera, which was the stock whereas clause were with allocation on it. Then in the paragraphs B2 and B3 which were subject to the colloquy between Mr. Doub and Mr. Justice Harlan, they said you can't use any materials, not any critical materials, but you can't use any materials in gold mining, that was a mere implementation of the shutdown provision. I skipped myself by saying that paragraph B1 was a direct and explicit order to the Homestake Mining Company, the Central Eureka Mining Company, the Bald Mountain Mining Company, and all the other ones, you shutdown your gold mines and if you want to do anything beyond what we say you can do, you must file an appeal to us and we will tell you just what you can do. It was precisely what happened in the Pewee Coal Company case except that in the case of the Pewee Coal company there was a continuance of operation. In this case there was a cessation of operations because that's what the government wanted. The government wanted to have the hard rock miners thrown on the market and then they were going to try and take them and shoo them out to Butte, Montana and Climax Colorado in the hope they would go in the non-ferrous metal mines.
Hugo L. Black: Suppose that suppose the court insist besides what you say (Inaudible) would you say that was beyond the power of the President?
Edward W. Bourne: No, without – no, I would say that that was authorized by the Title 2 of the Second War Project which is discussed in our brief and is not disputed by Mr. Doub --
Hugo L. Black: Would you say that if it has been done by Congress directly or through the President as an agent (Inaudible) if Congress has directed that all the gold mines to be closed and (Inaudible) taking of the property?
Edward W. Bourne: Your Honor I don't like to answer the question about the Congress because I am not clear in my own mind to what extent -- of course I am not so sure that Mr. Justice Frankfurter's question implied an acknowledgment that, the frank acknowledgment by the Congress of the purpose of the order. I think when he put this question to me he was talking about an order like this one which didn't --
Hugo L. Black: What I wanted to get at was that if you get the full force of your argument and to see I haven't just been unable to see, to seek relevance in the so called (Inaudible) taking, suppose they had just said that these have reached a conclusion as opposed I think that's detrimental to the war effort to produce gold, taking away manpower and so forth and (Inaudible) no gold would be produced thereafter (Inaudible) would you say that was a taking of that property?
Edward W. Bourne: I think it might well be sir.
Hugo L. Black: (Inaudible) because the stated ground which were not the real ground and that is a question of it.
Edward W. Bourne: Well as applied to Congress I think the situation, the cases seem to have gone very far that in saying that you can't go behind a declaration of a Congressional premise, but I don't read the cases such as I read as meaning that if the executive does something that amounts to a taking that the legal effect of the taking can be avoided.
Hugo L. Black: But does it amount to the taking to the rest, there is no production to be had at any particular, in a particular kind of industry throughout the whole nation, is that a taking?
Edward W. Bourne: Well I submit that it is sir.
Hugo L. Black: That's your argument?
Edward W. Bourne: Our argument and Your Honor refers to it as the whole industry actually it was 150 companies and individuals and I can't see why under these --
Hugo L. Black: I understood you to say that was (Inaudible)
Edward W. Bourne: No sir, that was --
Hugo L. Black: I understood you say that the order affected all the gold producers?
Edward W. Bourne: No I don't think I said that, I think Mr. Doub was the one who reported on the audit it affected all those which did not produce substantial quantities of non-ferrous metals, other metals.
Felix Frankfurter: Mr. Bourne may I ask this question? Leave out paragraph one if it is paragraph one, shut down paragraph, could the, could the WPD have issued an order to strangle this industry by provisions dealing with materials whatever or whatever other means it had of affecting industrial production, restrictions, could it, --
Edward W. Bourne: I might say that they consider that at the time and I dare say some lawyers gave thought to it and they decided not to do it. Now –
Felix Frankfurter: That brings me really, it as I understood your argument is that that was accomplished I don't mean to say that lawyers don't as a matter of cause to know elegant or even thoughtlessness on its code of British Empire as a result of thoughtlessness that England required a colony (Inaudible) lack of thought and we write things without thinking hard enough, but I like to know why if they could have accomplished the shut down of this industry, why did they make an exception as to this industry or this curtailment by putting in the explicit shut down provision. Is there any light in the --
Edward W. Bourne: The only light there is in the record that I know of Your Honor is that the suggestion was made I believe in July that there ought to be a shut down of the gold mines and then it could be accomplished by strangling. Now it would not have been, it would not have been sufficient, it would not have been to say they couldn't buy things because they had enough things to keep going. But obviously if they had said you can't use anything that you got you are practically saying you got to shut down, that would have been an indirect way and you are making -- the question that you are putting is along the line of the dissent of the Chief judge in the Court of Claims and he said strike out the directive for the shut down and you still have enough there to strangle the gold mine.
Felix Frankfurter: Well he reached the conclusion and I am putting an enquiry --
Edward W. Bourne: Well I don't, I will say this Your Honor, I don't think it is right to use a power over critical materials to strangle a business so as to throw the employees on the market and try and get them go somewhere else. Now your question doesn't pertain to whether that's right or wrong, your question pertains as to whether or not if they had done that, we'd have a harder time than we are having now, I don't know.
Felix Frankfurter: I don't understand the Chief Judge that he concurred in the Idaho case I don't understand I could concur with that opinion and then dissent in this case.
Edward W. Bourne: There again I find myself unable to answer the question which is very pertinent.
Felix Frankfurter: But one is I am right, am I -- this is the only industry in which there was such a clause wanted, is that what it's called.
Edward W. Bourne: Yes sir.
Felix Frankfurter: The only one?
Edward W. Bourne: Yes sir.
Felix Frankfurter: Throughout the years of the --
Edward W. Bourne: Throughout the years of the war it's the only one that I know of in history of the United States.
Felix Frankfurter: And do you say that there is in the record, evidence or whatever it is indicating that they thought of doing it by what I call strangulation and for one reason or other didn't do it, is that right?
Edward W. Bourne: I'd like to bring out one thing that I do really feel is fundamental here. It maybe not in the minds of all the court but I am bound to think it must be -- will be influential in the minds of some and that is I do not agree at all with the Assistant Attorney General's statement that this whole controversy is the facts in this case. And to my mind the most extraordinary feature of the case as it appears before this Court is that the court -- that that Attorney General's brief wholly disregarded the findings and facts of the Court of Claims. And I say wholly, actually there is a reference, a critical reference to one sentence and one claim. Except for that the entire presentation is precisely the kind of a presentation that a zealous lawyer might have made before the commissioner. In fact a great deal of it will be found to have been lifted verbatim from request that they made of the commission, the commission had turned down a request that were made of the Court of Claims that the Court of Claims have turned down. There is no -- it is all completely divorced in the findings and fact of the Court of Claims and Your Honor's have here to our great regret not only a long factual discussion in our brief, but a very long appendix required because of the fact that the government hasn't accepted the findings, the fact of the Court of Claims. Now let me take just one thing. I consider it a very, very important point, but whether it's important or not, it shows the existence of an issue, of fact. We say that there was only one purpose, this order, and that was as the Chairman of the WPB said to maneuver hard rock miners, that was the only purpose and the Court of Claims so found. Now that finding was vigorously litigated before the commissioner. The commissioner said there was another purpose, secondary but still a purpose, and that was to conserve critical materials and we objected to that and that was knocked out by the Court of Claims. Now what has happened, in their petition for certiorari, they said there were two purposes, one to conserve critical materials and two, to maneuver hard rock miners. Well they were not apparently satisfied with that statement in the petition for certiorari, so along they came in the brief and they changed the question presented, and they now say there were four purposes. One, it mentioned more or less -- well I don't that the mining purpose, second to get labor to go into other essential industries, that is to get the surplus employees of the gold mines to go work somewhere else; three to serve critical materials and four to divert mining machinery and equipment. Now by spreading out their petition for certiorari, they have I think fundamentally equated changed the case that is presented in this Court, but whether that, I am right about that or not, they have legitimatized so to speak the most expansive factual treatment that you can possibly imagine and in the process of the expanded factual treatment, they have it seems to me at least taken the greatest liberties with the documentary record, and I repeat, they do not mention findings as findings, they don't say which findings they agree with and which findings they don't agree with and to look to us this case is predominantly factual.
Hugo L. Black: Holding of the Court of Claims have found that was not the purpose (Inaudible)
Edward W. Bourne: Well I had this thought in my mind. I don't want to perhaps express too positive an opinion about it, but it seems to me that if it were the truth, if it were the fact, that these gold mines were acquiring -- first let me go back and say this. Long before this order was issued, the gold mines were precluded, effectively precluded from getting any critical materials, that's found explicitly and that particular finding is cited by them, although then they go and later seem to disregard it. Now, it had been true that the gold mines were getting critical materials, in other words that they were being bootlegged. Now I'm not prepared to say that this order couldn't be sustained, but there isn't a shred of a suggestion in the record that, that was true, not a shred of it.
Hugo L. Black: Isn't it ordinarily true that the purposes of the administrative agencies in issuing order while they are given broad power can be reviewed by the Court?
Edward W. Bourne: I think that the Court of Claims stated the correct rule Your Honor. I think the Court of Claims was right in saying that where any litigant has the -- assumes the burden of challenging the announced purpose of an executive, and this is I think is an executive, not an administrative body Your Honor, this is an agency of the President of the United States, then that litigant has a most difficult burden to sustain, that our position on that Your Honor is very simple and that is, we knew it was a difficult burden and we sustained it in full. And here is what the --
Hugo L. Black: What we call it, we had something like that up in (Inaudible)
Edward W. Bourne: The Morgan case?
Hugo L. Black: I don't recall just exactly whether (Inaudible)
Edward W. Bourne: Your Honor here is what the Court of Claims said and -- I think this line of questioning is pertinent and related to some questions that Mr. Justice Harlan put earlier, but I think this statement is a correct statement of the law and I feel that so far as the taking point is concerned, we stand on this, this is what the Court said on the denying a motion for anew trial.
William O. Douglas: What page you're reading from?
Edward W. Bourne: Page 145, denying a motion for new trial, the Court of Claims said with reference to its original decision, the Court held that what WPB said it was doing and what it in fact the law did, were two different things, and that the government could not escape the obligation of paying just compensation to what it had the authority to take and in fact took, simply by calling its action of taking a priorities order or an allocation order, now I think that's good law, and may I put this as an analogy. The Atwater case in the Court of Claims was an interesting case, in that there, there was no rendition so called. There the government was -- had a firing range on Fire Island. And as a matter of safety, they told owners of property not to use their property within the orbit of the guns that were being shot, and the Court of Claims held that, that was a taking. Now supposing if that army commander had, had two powers, one was the power to take property and the other was the power to exclude owners of property from their property on the ground that there was a threat to the health of the soldiers and supposing that army commander issues an order and said because of the danger of Asiatic Flu, everybody within the range of 15 miles, which happens to be the range of the longest gun at the time, must get off their property and supposing it were established beyond the slightest question that the purpose of the order was to have a safety dome so they could shoot guns and that there was no danger whatever of the Asiatic Flu. Can the executive, and this is the question, that there being a constitutional question here, this is it, can the executive take property and escape liability by dressing up the taking as a regulation? Now, Mr. Doub said that we can't go behind the preamble. That is the question -- that is the question, if we can't go behind the preamble, we've got a different case because we've gone behind the preamble, he goes behind the preamble for 85% of a brief of 110 pages, we'd have a complete agreement in here, that there was a justiable issue as to the purpose of this order. And I can't believe that this Court is prepared to hold that you cannot behind an the Executive Order. I'm prepared to agree that the burden is an onerous one. But to say that you cannot -- that you can escape liability for a taking by dressing it up as a regulation, I can't believe that this Court will find that. Now, it's in point one of our brief. We deal with certain things that are not what you might call technical aspects of the case but more have to do with the patriotic appeal that Mr. Doub has made and I like to run through them very briefly. They make as much as they can of the fact that the men who had to do with this order, particularly the President of the United States, were so purposely dedicated to winning the war. We don't dispute that, but in Ex Parte Milligan Justice David Davis who had been Lincoln's -- the administer of Lincoln's estate wrote to this Court when he said, “The Constitution of the United States is a law for rulers and the people, equally in war and in peace and covers with the shield of its protection all classes of men at all times and under all circumstances.” We reject the suggestion that we are unpatriotic because we are only asking to be put in the position we would have been in if a discriminatory order involving a taking had not been issued. We insist that the order was unique. That's gone into very fully with particular reference to these orders relating to passage of order of appeals (Inaudible) and what not. They seek to terrify the court by speaking of the vast amounts potentially involved. The amounts potentially involved are 50 suits estimated by them in their brief, they have potential liabilities of $40 million. It's a pure figment of imagination that there can be any other claims, and there is no reason in the world to suppose that this kind of a procedure is ever going to be followed again. It is sui generis it seem to us where you have no regulatory system with respect to labor to issue an order closing down a business so it will throw the labor on the market and maybe get them to go elsewhere. May I digress a minute on that and say, I said before and I don't want to get too far on the matter of the failure of the order, but there was a most incredible confusion, statistical confusion until the last minute, when the facts came out they didn't weigh it all. And the hope apparently was that the miners from the Homestake mines which is the biggest, by far the biggest of all the mines could be maneuvered as Mr. Nelson said to Climax in Colorado and to Butte Montana. The Court of Claims specifically found that the conditions at the mines were bad and the wages -- working and living conditions were bad as compared to what they were in the gold mines. In the case of, in the case of Climax the mine was over a 11,000 feet up in the Rocky Mountains and there are certainly many in this room who know that middle aged men and many of these miners were middle aged men can't be transplanted or maneuvered to take up arduous physical labor at 11,000 feet. Now what happened? The Climax Molybdenum Company had a 125 workers from the gold mines referred to them and at present according to Mr. Colder of that company have only 10 of these workers on their payroll. This is report of April 1943. They had 60 workers from the gold mines come to their mine, 6 of them failed to pass the physical examination and 44 of them had since quit working for this company. That is to say 60 came there, six failed to pass a physical -- that brought the number down to 54, you have special physicals for (Inaudible) to the operations, 44 quit and you got down to 10. I think the, I think the thing I want to emphasize more, most of all is the fact that these general observations about war losses do not apply to this particular very special episode. Now I, the government relies on the Caltex case I feel that there are two that -- the statement in the dissenting opinion in the Caltex case which is extremely pertinent and consistent with what this Court has held generally. Mr. Justice Douglas wrote with the concurrence of Mr. Justice Black it seems to me that the guiding principle should be this, whenever the government determines that one person's property whatever it maybe is essential to the war effort and appropriates for the common good, the public first rather the individual should bear the loss. Now I want to emphasize that whereas we do not yield to anyone in our appreciation of the gravity of the situation that existed during 1942, nevertheless what was done here was done as a result of the suggestion that was made in July 1942. There wasn't anything remotely approaching the situation that existed in Caltex. There wasn't anything remotely approaching the situation that existed on the West Coast next to the Japanese. There was plenty of time to find the facts, plenty of time to decide, to respect the law, there was plenty of time to wait and either have a statute for the general regulation of labor or to let the gold mine continue and deal with the problem of labor as it was dealt with in other areas.
Hugo L. Black: May I ask you a question about (Inaudible) was the bill discussed the day it passed the Senate?
Edward W. Bourne: I couldn't quite hear you sir.
Hugo L. Black: Was the bill discussed before it passed the Senate, the bill authorizing this suit, was there any discussion of it or --
Edward W. Bourne: On the floor --
Hugo L. Black: On the consent (Inaudible)
Edward W. Bourne: I don't have any knowledge of any discussion. I think that the government's brief said there was none, there were reports.
Hugo L. Black: You challenge --?
Edward W. Bourne: You understand Your Honor that we are not dependent upon that act?
Hugo L. Black: (Inaudible)
Edward W. Bourne: Well secondarily.
Hugo L. Black: Do you challenge the validity of the order the board issued?
Edward W. Bourne: No sir. I would have challenged it if hasn't been ratified by the President.
Hugo L. Black: You accept it as a valid order?
Edward W. Bourne: I accept it as an order that had to be obeyed and amounted to a taking.
Hugo L. Black: (Inaudible)
Edward W. Bourne: I don't accept it as an order, as a priorities order or an allocation order.
Hugo L. Black: But what -- I don't quite understand the relevance here of the argument, as for the purpose if you do not challenge its validity?
Edward W. Bourne: Well --
Hugo L. Black: Why those facts would have been material to determine the effect?
Edward W. Bourne: I think that if we had won suite there in effect to restrain the order, the government could have said that under Title 2 of the Second War Powers Act the President had the power to take any interest in property he chose and it didn't make any difference whether or not the preamble was camouflaged as we see it.
Hugo L. Black: They would have said that this order was valid does that depend on your interpreting it as a taking?
Edward W. Bourne: Well our conception that there was a taking I think depends upon the order being valid or the order being -- or the government being estopped and challenging the validity of it.
Hugo L. Black: But if the order was, if the order was not valid of course I assume you would have to challenge it in other ways rather than suit for a (Inaudible)
Edward W. Bourne: Well I think Your Honor in the -- in (Inaudible) opinion indicated some reservation on that point.
Felix Frankfurter: If the order, if the order were claimed to be invalid then it couldn't be interpreted as an authorization of taking and before the United States can be sued for a taking, there must be some authorization by an appropriate governmental authority. There might be a tort, an officer, an employee of the government may on his -- may on (Inaudible) of his own destroy property, but he could be authorized to take, and yet he is authorized, and therefore you come in under a taking the order must be deemed valid.
Edward W. Bourne: Exactly we argue its validity at great length.
Hugo L. Black: Well that's what I want to find out if you did.
Edward W. Bourne: Yes indeed it's --
Hugo L. Black: Much of what you just said has been attacking the purpose for which the order was issued.
Edward W. Bourne: Well I appreciate --
Hugo L. Black: I want to be sure that you were not saying that the order was invalid?
Edward W. Bourne: I'm not -- very definitely not, and with the section --
William J. Brennan, Jr.: Well Mr. Bourne if it was valid, what's the significance that whether it had one or four proposes, I don't follow that? Why are you arguing so strenuously that the three additional purposes urged on as part of the government, were not purposes of the order at all, but it had as its single purpose forcing gold miners into the hard rock mine. Why you are arguing that so strenuously, I don't follow.
Edward W. Bourne: Because they seek to give the impression that the order was a regulation with pertaining to critical materials, machinery and equipment, and much of what Mr. Doub said on his original presentation and he asked me more of what is brief, is pertinent only if that's what it really was.
Felix Frankfurter: And if it was that you wouldn't challenge it, you would say that the mass of regulation by the WPB, cutting down the critical materials, limiting processes, et cetera, et cetera, you would say -- you do say that that is not, those did not constitute taking, is that right?
Edward W. Bourne: Certainly Your Honor.
Felix Frankfurter: And if this were that, then you would say it comes under the general regulatory power, the WPB to control, to regulate the economic property and economic (Inaudible) of the labor courts of the United States, is that right?
Edward W. Bourne: That's correct.
Felix Frankfurter: What you're saying is that this order, I'm not suggesting remotely that I think you're right or wrong, what you're saying is that under the pretense of being an allocation order, in fact there was what you say is a constitutionally authorized taking?
Edward W. Bourne: Precisely. Mr. Campbell calls my attention to the – (Inaudible) remind me of, to be sure that I don't forget it, although I don't want to exaggerate its importance. In our discussion of the Special Jurisdictional Act, inadvertently we omitted to cite a case, which we have cited in the brief in opposition to petition of certiorari. I mentioned that to Mr. Doub yesterday, so that he wouldn't be taken completely by surprise, and I ask leave simply to mention the name and give the citation in the case and refer to it very briefly. It was referred to on page five of our brief and opposition to certiorari in note three, and the name of it is Brinker-Johnson and Company against Reconstruction Finance Corporation, 236 F.2d 195. It was decided by the Court of Appeals to the Ninth Circuit. I think perhaps I can very briefly summarize it by saying that the Court of Appeals there held that the -- not in the suit on the Special Jurisdictional Act, but in the suit involving the Reconstruction Finance Corporation, the Court of Appeals held or said that enacting public law 532, the Congress fully appreciated the hardship caused by L208. Congress elected to recompense any operator of a gold mine or gold plus operation, for all losses caused by the order, that provided a mechanism to that end. Now in view of the fact that I didn't discuss it in the brief, all I want to do is to cite it to the Court, and ask the Court if convenient if they would take a look at it.
Speaker: Everything you said, excuse me – everything you said up today as I understand it, it stands quite independently of the Special Jurisdictional Act.
Edward W. Bourne: Except for my (Inaudible)
Speaker: Yes.
Edward W. Bourne: That's entirely correct.
Speaker: In other words your position is that you can ignore that act and you're still entitled to (Inaudible)
Felix Frankfurter: Your position is -- your position is however that you lean on that act if you have to.
Edward W. Bourne: Yes sir.
Charles E. Whittaker: You call it a Special Jurisdictional Act, is it your concept that that's all this statute is, is a jurisdiction statute?
Edward W. Bourne: Well I think Mr. Justice Whittaker that the word jurisdictional as used with reference to that kind of a statute, really means the grant by the Congress to a court of authority, to award a judgment for dollars.
Charles E. Whittaker: Well these are plain and simple wordings and they mean what they say, do they not, and if they create a cause of action they create a cause of action, do they not?
Edward W. Bourne: Well, that is language that the word jurisdiction is the language which has been classically used by the Congress in cases where they have created cause of action, in cases where they haven't done. But they merely eliminated the statute of limitations.
Speaker: Is this statute, that is what I was going to ask you, is this statute susceptible of the construction of it's only purpose was to eliminate the statute of limitations?
Edward W. Bourne: I think that's an arguable point Your Honor, I have to say in honestly, I think that's an arguable point. We've argued it and the other side is arguing the other side of it.
Speaker: So you draw some sustenance out of the statute, is the secondary string to your bow which goes beyond --
Edward W. Bourne: Very definitely. But I wouldn't be frank with the Court if I said that I thought that the government's position on that was trivial.
Felix Frankfurter: Well, somebody had to do something with words used by the Congress of the United States defining the subject matter which it is now, for which it is now giving authority to the Court of Claims to pass on and the question is what is it that the Court of Claims is allowed to pass on with complete indifference to statute of limitations, et cetera, et cetera, is that right?
Edward W. Bourne: I'm sorry I just noticed that my mic was out, and I didn't hear the first part of the question.
Felix Frankfurter: My question is that the Congress of the United States, very often gives to the Court of Claims, authority beyond the existing the original Omnibus Court of Claims Act, and in those enactments, it formulates variously, what it is that the Court of Claims is thereafter authorized to pass on.
Edward W. Bourne: Yes sir.
Felix Frankfurter: Some times it merely says in a specific case the statute of limitation is not to be deemed statement, in other instances it says some other defense or it says comprehension, no defense that could have been raised shall be allowed, in other instances it tells what it is, as in the case of the Indian statute, it says the Court of Claims should be a grand daddy, and give them whatever they think is nice and fair, and we have to decide what this is.
Edward W. Bourne: I agree with that completely and I think that, that aspect of the case Your Honors will find is fully covered in our brief and now in the reply brief it was not taken up initially in the government's initial brief, very logically because they didn't know to what extent we were going rely on it, but they cover it in their reply brief. And I think you find the discussion (Inaudible)
Earl Warren: Mr. Doub you may --
George Cochran Doub: Senator McCarran introduced two bills prior to this Special Jurisdictional Act, to provide explicitly for compensation for these gold mine companies and to provide for an administrative recognition of the clients and both bills failed in the Congress.
George Cochran Doub: Senator McCarran --
Felix Frankfurter: We hear that kind of an argument often as to what a failure of a bill means, for me it always means nothing. I think an amendment that's rejected means something, but Congressmen today I suppose had put into the hopper a thousand bills or maybe more in this notion that because a bill remains in the hopper it means something, seems to me a very great strain on one's reasoning.
Hugo L. Black: When did he put in those bills? I have --
George Cochran Doub: They came in before 1952 and they came in before the decision of the Court of Claims reversing –
Hugo L. Black: Were they with reference to the same gold mining claims?
George Cochran Doub: Yes sir.
Hugo L. Black: And then later did he have this bill which came up on the consent calendar without discussing – five minutes.
George Cochran Doub: There was no discussion Mr. Justice Black on the floor of the house or on the floor of a Senate and we respectfully submit that if the Congress had believed that they were creating a liability in some astronomically amount we just can't help but believe that they would have, they would have discussed it.
Hugo L. Black: Now as to his other bills, which would have created liability, after those bills failed to pass, the (Inaudible)
George Cochran Doub: Yes sir.
Hugo L. Black: (Inaudible) by the committee.
George Cochran Doub: That's right.
Hugo L. Black: Passed on the consent calendar. I just read the reports, is there anything outside the report, which was enough to tell the senators to come that there was being a liability created against the government, an absolute liability?
George Cochran Doub: I know of no legislative history except the report.
Felix Frankfurter: (Inaudible) spoken too quickly. Did I understand that the bills, the first bill which you mentioned which I made a comment went through a vote and rejected affirmatively.
George Cochran Doub: Well that makes the --
Felix Frankfurter: That make a very great difference, if actually Congress votes something down I was talking about introducing bills and finding great significance that has never came to a vote. I never was in the Congress but I know that means nothing.
Hugo L. Black: I was over there and I found it interesting [Laughter].
Felix Frankfurter: Maybe that's an advantage of not having been there.
Hugo L. Black: I think so.
George Cochran Doub: I notice that in our notes, in our brief on this subject on page 107 and 108 of our brief, we refer to it as uniformly failing of passes, so --
Felix Frankfurter: What do that mean, does it mean that it was discussed and voted upon, or does it mean that it never was passed.
George Cochran Doub: I will, I will --
Felix Frankfurter: There are thousand bills I repeat that are introduced today that doesn't pass, because nobody takes them up.
George Cochran Doub: All I can say is that I don't know and I would assume they -- they never reached the floor.
Hugo L. Black: You would assume perhaps that either the Senate House didn't pass them or the committee did not report on favor and after that happened, he offered this other bill?
George Cochran Doub: That's, that's correct Mr. Justice Black.
Felix Frankfurter: I hope the government wouldn't come here next week and say what I have just said is so. I heard the government often say that merely an introduction of a bill – they have no significance on the construction of some other bill that did pass.
George Cochran Doub: I would like to read to you what the War Production Board said in the preamble that's been attacked here with respect to its order. It's been referred to as camouflage. It's been referred to as untrue, I think that was one of the words used and this is what the war production board said and this all that it said. The fulfillment of requirements for the --
William J. Brennan, Jr.: Where are you reading from?
George Cochran Doub: I am reading from page 111 of our brief. The fulfillment of requirements for the defense of the United States has created a shortage in the supply of critical materials for defense for private accounts and for export, which are used in the maintenance and operation of gold mines and the following order is deemed necessary and appropriate in the public interest and to promote the national defense. That was a solemn declaration of the executive. The War Production board was acting for President Roosevelt. It was his act just as it was their act. And I say that the attack made 16 years later upon that preamble is unjustifiable and unnecessary and it doesn't help with respondent's case because at page 99 of their brief they say this, “It has not been held and the respondents did not argue that the order was unlawful.” The respondents did not argue that the order was unlawful and unlawful means invalid and valid means authorized properly.
William J. Brennan, Jr.: Well tell me Mr. Doub, if in fact the only purpose of this L-208 order was to accomplish the shift from the gold mines to the hard rock mines particularly the copper mines of miners, if that in fact was the only purpose of it, would it have been a valid order?
George Cochran Doub: We believe it would have been a valid order then but I'd like to say this and I'll have to qualify my statement to you Mr. Justice Harlan that is an expression of opinion of the Court of Claims which we cannot accept and if you will just read one report in the record as to a study made of the consequences of this order, which you'll find at 1223 showing what was the result of the order, what were its consequences, you will find a very different picture from that found by the Court of Claims. You'll find that they discussed substantial increases in the production of copper, zinc and lead $1.5 million in equipment transferred from the gold mines to essential non-ferrous metal mines, $15 million worth of strategic material was released from the gold mines that were closed. The order resulted in the transfer of approximately 2000 gold miners to war industries and at least 1200 of these went into the copper mines and other essential non-ferrous metal mines. Well the other side dispute this report and they have some figures that are more favorable to them. But it emphasizes that it's not the consequences of the order that are important and that are critical. So in conclusion I would merely like to say this, there were good reasons for the high policy decision that gold should go on in South Africa and Canada and Honduras because those countries were absolutely dependent for their economy on it and I respectfully submit that this contention accepted by the Court of Claims is a very reactionary one and it (Inaudible) private property far beyond anything that's been held in any decision of this Court.