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sition not only of title in fee, but also of any "temporary use thereof or other interest therein, or right pertaining thereto "; and authorizes immediate possession upon the filing of the petition for condemnation, waiving the requirements of section 355, Revised Statutes, as to approval of title by Attorney General, and cession of jurisdiction over the premises. This statute is eminently satisfactory so far as it applies. As passed by both branches of Congress, it included the words "and other military purposes" following the words tary training camps," but these words were stricken out in conference, thereby limiting the scope of this act to lands required "for the site, location, construction, or prosecution of works for fortifications, coast defenses, and military training camps."
(e) Act of July 24, 1917 (40 Stat., 243), authorizing "the acquisition of land, or any interest in land, with any buildings and improvements thereon, by purchase, lease, donation, condemnation, or otherwise," for the establishment, equipment, maintenance, and operation of aviation stations. (Idem, p. 245.) (d) Act of July 27, 1917 (40 Stat., 247), authorizing the President to cause possession to be taken on behalf of the United States of the whole of North Island, San Diego, Cal., settlement to be made therefor as authorized in said act. (e) Act of August 10, 1917 (40 Stat., 276), section 10 of which authorizes the requisitioning of "storage facilities for such supplies," i. e., supplies necessary to the support of the Army, or the maintenance of the Navy, or for other public use connected with the common defense.
(f) Act of October 6, 1917 (40 Stat., 352), making appropriation for a proving ground and authorizing the President to take over for the United States the possession and title of certain lands for said purposes. The authority so conferred is limited by the amount of the appropriation made for the purpose. Under this authority the proving ground at Aberdeen, Md., has been acquired. (g) Section 120 of the national defense act of June 3, 1916 (39 Stat., 213), which, although passed prior to the beginning of the war, was enacted to meet war conditions, authorizes the placing of orders with manufacturing establishments for military supplies, and provides that such orders shall have pręcedence over prior commercial orders, and that if the manufacturing establishment refuses to fill the order the President is authorized to "take immediate possession of any such plant or plants and, through the Ordnance Department of the United States Army, to manufacture therein in time of war, or when war shall be imminent, such product or material as may be required,' etc. This statute, according to its terms, only authorizes the taking over of a plant following the failure of a manufacturer to fill the order.
(h) The following statutes may be mentioned, although they do not relate to the jurisdiction of the War Department, namely:
(1) Act of March 4, 1917 (Public, No. 391 65th Cong., pp. 28 and 29), authorizing compulsory orders for war material for ships and airplanes, the requisitioning of factories for their manufacture, limiting the authority so conferred to March 1, 1918.
(2) Act of June 15, 1917 (40 Stat., 182), under the heading, Emergency shipping fund," vests the President with authority to issue compulsory orders for ships and materials; to requisition any plant or part thereof; and to requisition or take over the title or possession and use of any ship. The definitions of this act appear to confine its operations to the shipping program.
(3) Act of March 1, 1918 (Public, No. 102, 65th Cong.), authorizing the United States Shipping Board Emergency Fleet Corporation to purchase, lease, requisition, or otherwise acquire lands for the construction thereon of houses for, the use of employees, and the families of employees, of shipyards in which ships are being constructed for the United States, and making appropriation to permit the exercise of the authority thus given.
6. Insufficiency of existing legislation.—It will be apparent that, aside from the special statutes authorizing the acquisition of particular tracts, the existing legislation is limited in its scope and is entirely inadequate to meet war conditions. If the words "and other military purposes" had been retained in the act of July 2, 1917, supra, this act would have met the requirements of the situation, but the elimination of these words in conference, as explained above, leaves the act applicable only where the lands are required for the purposes specified therein; i. e.. for sites for works for fortifications, coast defenses, and military training camps. Where lands are required for other purposes, although the purchase may be authorized by an appropriation, and they may be urgently needed, the department has no means of promptly securing the lands where the owners will not sell them at a reasonable price. The department
therefore must do without the lands or submit to the unreasonable exactions of profiteering owners, since the delay incident to their acquisition by condemnation would preclude this method if the lands are to be available for the requirements of the existing emergency.
II. AS TO PERSONAL PROPERTY.
The only statute which authorizes the requisitioning of personal property is the act of August 10, 1917 (40 Stat., 279), commonly known as the food, feed, and fuel act. Section 10 of that act broadly authorizes the requisitioning of foods, feeds, fuels, and other supplies necessary to the support of the Army, or the maintenance of the Navy, or any other public use connected with the common defense, and to requisition or otherwise provide storage facilities for such supplies, etc. This provision is contained in the food, feed, and fuel act and primarily contemplates supplies of the character therein defined as necessaries," namely, "foods, feeds, fuel, including fuel oil and natural gas, fertilizer and fertilizer ingredients, tools, utensils, implements, machinery, and equipment required for the actual production of foods, feeds, and fuel.” The language of section 10, however, is susceptible of a broader meaning and may be construed as including any sort of supplies required for public use in connection with the common defense. While the question is not free from doubt, it has been so construed in practice. It may be further observed that section 120 of the national defense act of June 3, 1916 (39 Stat., 213), provides for a method of securing the manufacture of supplies by compulsory orders, giving the Government precedence over private orders without regard to the date of placing of the same. The combination of these two statutes appears to meet the requirements as to personal property; but, as explained above, the existing legislation is entirely inadequate as to real property. Would you
Mr. GARD. Have you a copy of the bill, of 11136? kindly go over it with me a minute?
Col. CALL. Yes, sir. Col. Gilbert is more familiar with the bill than I am.
Mr. GARD. Either or both of you, we would be glad for you to suggest on the bill as we go along. The bill seems to provide for means for acquiring real estate or personal property or fixed property during the present war emergency. That is the limitation of it, isn't it?
Col. GILBERT. That is correct.
Mr. GARD. "The President is hereby authorized, either directly or through such executive department or agency as he may designate, to take over for and on behalf of the United States from time to time during the present war the possession and use or ownership of any and all personal property and such use of or such right, title, and interest in and to any and all real property, or any part or portion thereof as in his opinion is necessary for the national security and defense or the conduct of the Government." That means you can take over for use or ownership any personal property or title to any real estate that the President or any executive department he may designate may think it necessary for the national security?
Col. GILBERT. It rather enlarges the power of the Executive than gives power to the executive department.
Mr. GARD. It seems to me to give to the department the same power as it does to the President.
Col. GILBERT. That he may operate through the executive department by calling upon that department or those departments to act in the premises.
Mr. GARD. Your second provision is that real estate shall be acquired through proclamation describing such real property and setting forth whether the United States takes the title in fee or a
lesser estate, and when it makes the proclamation the property then becomes the property of the United States and you may immediately enter into possession thereof.
Col. CALL. That method was authorized for the acquisition of Aberdeen Proving Grounds over here in. Maryland.
Mr. WHALEY. What is the meaning of the expression porary use thereof," after lesser estate?
Col. CALL. It is to cover all possible uses of real estate.
Col. GILBERT. Yes, sir. Lesser would cover rentals.
Mr. WHALEY. Lesser estate would cover temporary use, even rentals, wouldn't it?
Col. GILBERT. Yes, sir.
Mr. VOLSTEAD. In my State no estate could be taken less than leasehold.
Mr. GARD. The present law I suspect-I haven't examined it-I suspect it is that the existing law should permit the condemnation of private property for public use through the courts.
Col. GILBERT. That law is very limited, and that is the trouble the Government is finding. That is one of the reasons for presenting this bill.
Mr. GARD. What are the limitations in that that you think are insufficient to allow the Government to go ahead?
Col. GILBERT. Generally speaking, this involves real estate. The Government has the power only to take real estate for fortifications and coast defenses in connection with that, barracks and quartersI am speaking now of the War Department and the Army-and real estate needed for rivers and harbors improvement for which provision has been made by law, and condemnation of such real estate has been authorized by Congress for public use. Then there is this act of July 2, 1917, as has been recently amended. It is not yet in published form. This allows the taking of real estate for construction, location or use for coast defense-I believe the amendment was added to cover nitrate plants and electric power needed in connection therewith.
Mr. WHALEY. Haven't you got here for storage plants and embarkation plants, also remount stations?
Col. GILBERT. I was only speaking of the fee.
Mr. WHALEY. By requisition-that is what I speak of.
Col. GILBERT. Not unless you had some special act. There is this food, feed, and fuel act, which allows you to take temporary use and lease for storage of whatever you may take under that actfood, feed, and fuel.
Mr. WHALEY. No; it must come under the urgent-deficiency bill. You take, down in my State, 2,000 acres for a remount station, storage facilities, and embarkation; they took that recently.
Col. CALL. They took that under the terms of the food, feed, and fuel act. The terms of that section seem to be more general than any other section" or any supplies necessary for the national defense." It was necessary to construe it to include
Mr. WHALEY. That falls under the Agricultural Department, not the War Department.
Col. CALL. Yes.
Mr. VOLSTEAD. I want to ask you a question with reference to the phrase "or the conduct of the Government," at the end of the second section. If it is taken for the national security and defense, it seems to me what you want is in aid of the Navy and Army; that would be the conduct of the war. It says, "or conduct of the Government. Anything-deepening a river, or putting up a post office, or something like that you could take it under this. It ought to be a war power.
Mr. GARD. Have you any explanation you want to give as to section 2, that provides for the issuance of a proclamation describing the property? Does it provide for service of that proclamation on anyone?
Mr. GILBERT. No; it is just to be merely a proclamation. The proclamation itself would operate to transfer the title.
Mr. GARD. How is the person who owns the property to be advised of the proclamation? Suppose I own a piece of property, say, in West Virginia, and the Government, through some executive agency, determined that it was necessary for the national security and defense, and thereupon they issued a proclamation saying they wanted the property. Am I to be advised of that in any way?
Col. GILBERT. Just like any other proclamation that is issued. Mr. VOLSTEAD. You have got to take notice of it.
Mr. GARD. I was wondering if you intended to provide for any notice of it?
Col. GILBERT. We do not intend for the act to provide for specific notice.
Mr. WHALEY. I notice you haven't got any time in there.
Mr. WHALEY. They could take over any of those apartment houses here and turn us all out to-day. That is a little strong, isn't it? Col. GILBERT. I don't think so.
Mr. WHALEY. Under this thing they could notify you to get out of any one of these apartment houses here to-morrow and the Army walk in, throw your stuff out in the street. They are not going to do it, but under this thing they could do it. Suppose they go into a city, for instance, not expecting them in there, and would say, "We take all these houses under this proclamation," without any notice. That is unreasonable.
Col. GILBERT. I will say with respect to that, in drawing the act it was drawn that way intentionally and after considerable thought. It ofttimes is necessary that the Government shall have a thing quick, at this time, as it is necessary that it shall have it at all, and to impede it at all is to lessen its efficiency, and one of the objects of this bill was to provide a quick method of acquiring such property as was necessary to have.
Mr. GARD. This third section states that notice shall be given where personal property is intended to be acquired by written requisition, notice served upon the owner or owners thereof-line 21. Col. GILBERT. Yes.
Mr. GARD. There is no such notice called for in section 2; I was just calling your attention to that, whether it is advisable to do it or not.
Col. CALL. It was because section 2 was by proclamation and this is by requisition.
Mr. WHALEY. It says:
Immediately upon such promulgation of such proclamation such title to or interest in or use of real estate as is described and defined by said proclamation shall vest in and become the property of the United States, and it may immediately enter into the possession thereof.
Mr. GARD. Provided the executive department makes the proclamation. Say they make a proclamation saying the property at 1452 F Street-if there is such a number-is necessary for national security and defense.
Col. GILBERT. I think not. I think, generally speaking, a proclamation is regarded as something for the President to issue.
Mr. GARD. It don't say so.
Col. GILBERT. The President took over the railroads, for example, in obedience to law, and he recited he did it through the War Department.
Mr. WHALEY. The law provided he did it through the War Department.
Mr. GARD. When you get down to the individual cases like a piece of real estate the President wouldn't issue a proclamation at the time, he would delegate that to some executive head. That would be the danger of it I would see. Some executive head might run rampant over taking a man's property for unnecessary purposes. I can see that some law of this kind is necessary. You have got to recognize the discretion of some one. Maj. Neely has suggested that so far as he has read there is nothing in the law about any appeal.
Mr. WHALEY. That isn't necessary. But I do think it ought to have some notice when a person's property is going to be taken over. It is all right to say he can't have a hearing, that that property shall be taken, but I think it is going a little strong to issue a proclamation that you will take his property over to-day-you will take it over this afternoon or to-morrow morning. Provide 10 days before the promulgation of this notice. You may disrupt his own business, whereas if he has got an opportunity to make other arrangements he may preserve his business.
Mr. GARD. Section 5 provides for payment of a compensation and provides the value of the property is to be determined by an appraiser appointed by the President or head of the executive department, and if he doesn't accept that valuation he shall be paid 75 per cent of the appraisal and be entitled to sue the United States to recover such further sum as to make up the amount of such compensation therefor.
Mr. WHALEY. That is different from the other requisition. The act providing for the requisition down here at Queenstown, provided for the appraisement and payment of 75 per cent of that if they didn't want it.
Mr. GARD. That is what I was going to suggest, to provide for one appraiser to be appointed by the President, one by the executive department, and one by the property owner.
Col. GILBERT. I think it is necessary for swift action that the President shall appoint the appraiser, that there shall be nothing to delay this action, that there is ample and full protection by and through the provisions of section 5. If the amount of the appraisal is not satisfactory he does not have to accept it. He will receive 75 per cent of that appraisal in cash and then he may sue for the