In July 1941 Congress used the power of eminent domain to facilitate the construction of public utilities for defense purposes.[304] Upon finding that the construction of any pipe-line for the transportation and/or distribution of petroleum or petrol products moving in interstate commerce was or might be necessary for national-defense purposes, the President was permitted to acquire such land or interest in land, including rights-of-way or easements, by the exercise of the right of eminent domain, as, in his opinion might be necessary.[305] The President invoked this Act on a number of occasions.[306]
The Second War Powers Act earlier mentioned not only authorized the acquisition of real property by the Secretaries of War and Navy or their agents, but permitted them to dispose of such property or interest therein by sale, lease or otherwise.[307] The Small Business Concerns Mobilization Act of June 1942 empowered the Smaller War Plants Corporation, established under the Act,[308] to purchase or lease land, to purchase, lease, build, or expand plants, and to purchase or produce equipment, facilities, machinery, materials, or supplies, as might be needed to enable the Corporation to provide small business concerns with the means and facilities to engage in the production of war materials.[309] The Corporation could also enter into contracts with the United States government and any department, agency, or officer of the government having procurement powers and obligate the Corporation to furnish articles, equipment, supplies, or materials to the government.
Availability of Federally Owned Property to Private Enterprise
Actually no clean demarcation can be made between this and the preceding section. A graduation can be established, moving from statutes lending the power of eminent domain to private enterprise, to those emphasizing government acquisition and lending or leasing, and ultimately to those principally concerned with providing government-owned equipment to private enterprise—the equipment presumably already in the hands of the government or subject to acquisition under other statues.
One of the very first Acts to provide for placing educational production of munitions of war stipulated that initial orders placed with any person, firm, or corporation for supplying such munitions, accessories, or parts, could include a complete set of such gages, dies, jigs, tools, fixtures, and other special aids and appliances, including drawings as needed for the production of munitions in quantity in the event of emergency.[310] The title to all such facilities was to remain in the government of the United States. The fiscal 1941 Navy Department Appropriations Act granted the Navy funds to furnish Government-owned facilities at privately owned plants,[311] and a July 1940 Act to expedite the strengthening of the national defense accorded like authority to the President.[312] Section 303 (a) (d) of the Defense Production Act of 1950 gave the President a general power to purchase raw materials including liquid fuels for government use or for resale, and when in his judgment it would aid the national defense, to install government-owned equipment in plants, factories, and other industrial facilities owned by private persons.[313]
Acquisitions Incidental to Enforcement of a Control Program
Of the acquisition statutes hitherto discussed, most required that an effort be made to negotiate a fair price with the individual or concern whose property was acquired and, failing that, recourse might be had to eminent domain proceedings. By the terms of the latter, private entrepreneurs or investors in effect are confronted with the option of utilizing their property in conformity with the Government’s mobilization program or, in lieu thereof, of relinquishing it to the Government. The statutes now to be considered sanction acquisition of private property in those cases in which the owners or operators are not managing it to the Government’s satisfaction.
A June 1940 Act to expedite national defense empowered the Secretary of the Navy, under the general direction of the President, whenever he deemed any existing manufacturing plant or facility necessary for the national defense, and whenever he was unable to arrive at an agreement with the owner of any such plant or facility for its use or operation, to take over and operate such plant or facility either by Government personnel or by contract with private firms.[314] The Selective Training and Service Act of 1940 authorized the President, acting through the Secretaries of War or Navy, to take immediate possession of any plant or plants which in the opinion of the Secretary of War or the Secretary of the Navy were capable of being readily geared to war production. This drastic action came only when the owners refused to give to the United States preference in the matter of the execution of orders, or refused to manufacture the kind, quantity, or quality of arms or ammunition, or who refused to furnish the materials demanded at a reasonable price.[315]
The War Labor Disputes Act gave the President a similar power to seize struck industries. It might be exercised with respect to any plant, mine, or facility equipped for the manufacture, production, or mining of any articles or materials which might be required for the war effort, or which might be useful in connection therewith. But a presidential finding was necessary first, that there was an interruption of the operation of the plant, mine, or facility as a result of a strike or other labor disturbance, and that the war effort would be unduly impeded or delayed by the interruption, and that the exercise of such power and authority was necessary to insure operation in the interest of the war effort.[316]
Not, perhaps, punitive in its object, but nonetheless related to enforcement of a control program, was the provision of the Emergency Price Control Act of 1942, permitting the Price Administrator to buy or sell commodities and goods or grant subsidies to assure necessary production.[317]