The Constitution of the United States of America: Analysis and Interpretation Part 87

[70] 57 Stat. 163.

[71] "During the course of the year [1945] the President directed the seizure of many of the nation's industries in the course of labor disputes. The total number of facilities taken over is significant: two railroad systems, one public utility, nine industrial companies, the transportation systems of two cities, the motor carriers in one city, a towing company and a butadiene plant. In addition thereto the President on April 10 seized 218 bituminous coal mines belonging to 162 companies and on May 7, 33 more bituminous mines of 24 additional companies. The anthracite coal industry fared no better; on May 3 and May 7 all the mines of 365 companies and operators were taken away from the owners, and on October 6 the President ordered the seizure of 54 plants and pipe lines of 29 petroleum producing companies in addition to four taken over prior thereto.

"During the year disputes between railroad companies and the Brotherhoods resulted in the establishment of twelve Railroad Emergency Boards to investigate disputes and to report to the President. The President also established on October 9 a Railway Express Emergency Board to investigate the dispute between the Railway Express and a union.

"To implement the directives of the National War Labor Board, the Office of Economic Stabilization directed the cancellation of all priority applications, allocation applications and outstanding priorities and allocations in the cases of three clothing companies and one transportation system which refused to comply with orders of the National War Labor Board." Arthur T. Vanderbilt, War Powers and their Administration, 1945, Annual Survey of American Law (New York University School of Law), pp. 271-273.

[72] 8 Fed. Reg. 11463.

[73] 56 Stat. 23.

[74] 322 U.S. 398 (1944).

[75] Ibid. 405-406.

[76] _See_ Corwin, The President, Office and Powers (3d ed.) 302-303.

[77] Charles Fairman, The Law of Martial Rule (Chicago, 1930), 20-22.

Albert Venn Dicey, Introduction to the Study of the Law of the Const.i.tution (7th ed.), 283-287.

[78] Dicey, Introduction to the Study of the Law of the Const.i.tution, Chap. VIII, 262-271.

[79] 7 How. 1 (1849). _See also_ Martin _v._ Mott, 12 Wheat. 19, 32-33 (1827).

[80] 2 Bl. 635 (1863).

[81] 4 Wall. 2 (1866).

[82] Ibid. 127.

[83] Ibid. 139-140. In Ex parte Vallandigham the Court had held while war was still flagrant that it had no power to review by certiorari the proceedings of a military commission ordered by a general officer of the Army, commanding a military department. 1 Wall. 243 (1864).

[84] 31 Stat. 141, 153.

[85] Duncan _v._ Kahanamoku, 327 U.S. 304 (1946).

[86] Ibid. 324.

[87] Ibid. 336.

[88] Ibid. 343.

[89] Ex parte Quirin, 317 U.S. 1 (1942).

[90] 317 U.S. 1, 29-30, 35 (1942).

[91] Ibid. 1, 41-42.

[92] Ibid. 28-29.

[93] 1 Stat. 577 (1798).

[94] 327 U.S. 1 (1946).

[95] Ibid. 81.

[96] _See_ Leo Gross, The Criminality of Aggressive War, 41 American Political Science Review (April, 1947), 205-235.

[97] Fleming _v._ Page, 9 How. 603, 615 (1850).

[98] Madsen _v._ Kinsella, 343 U.S. 341, 348 (1952). _See also_ Johnson _v._ Eisentrager, 339 U.S. 703, 789 (1950).

[99] Totten _v._ United States, 92 U.S. 105 (1876).

[100] Hamilton _v._ Dillin, 21 Wall. 73 (1875); Haver _v._ Yaker, 9 Wall. 32 (1869).

[101] Mitch.e.l.l _v._ Harmony, 13 How. 115 (1852); United States _v._ Russell, 13 Wall. 623 (1871); Totten _v._ United States, note 3 above; [Transcriber's Note: Reference is to Footnote 99, above.] 40 Op. Atty.

Gen. 251-253 (1942).

[102] _Cf._ the Protocol of August 12, 1898, which largely foreshadowed the Peace of Paris; and President Wilson's Fourteen Points, which were incorporated in the Armistice of November 11, 1918.

[103] Fleming _v._ Page, 9 How. 603, 615 (1850).

[104] Santiago _v._ Nogueras, 214 U.S. 260 (1909). As to temporarily occupied territory, _see_ Dooley _v._ United States, 182 U.S. 222, 230-231 (1901).

[105] Swaim _v._ United States, 165 U.S. 553 (1897); and cases there reviewed. _See also_ Givens _v._ Zerbst, 255 U.S. 11 (1921).

[106] 15 Op. Atty. Gen. 297 and note; 30 ibid. 303; _cf._ 1 ibid. 233, 234, where the contrary view is stated by Attorney General Wirt.

[107] Ex parte Quirin, 317 U.S. 1, 28-29 (1942).

[108] General Orders, No. 100, Official Records, War of Rebellion, ser.

III, vol. III; April 24, 1863.

[109] _See_ e.g., Mimmack _v._ United States, 97 U.S. 426, 437 (1878); United States _v._ Corson, 114 U.S. 619 (1885).

[110] 10 U.S.C. -- 1590.

[111] Mullan _v._ United States, 140 U.S. 240 (1891); Wallace _v._ United States, 257 U.S. 541 (1922).

[112] Surrogate's Court, Dutchess County, New York, ruling July 25, 1950 that the estate of Franklin D. Roosevelt was not ent.i.tled to tax benefits under sections 421 and 939 of the Internal Revenue Code, which extends certain tax benefits to persons dying in the military service of the United States. New York Times, July 26, 1950, p. 27, col. 1.

[113] Farrand, I, 70, 97, 110; II, 285, 328, 335-337, 367, 537-542 (_pa.s.sim_).

[114] Heads of Executive Departments except the Postmaster General have no fixed legal terms. For the history of legislation on the subject.

_See_ 36 Op. Atty. Gen. 12-16 (April 18, 1929); _also_ Everett S. Brown, The Tenure of Cabinet Officers, 42 American Political Science Review 529-532 (June, 1948).

[115] _See_ Corwin, The President, Office and Powers (3d ed.), New York University Press, 1948, 21-22, 74, 98-99, 257, 358-364, 372-373, 378-381, 516-519. The only question of a const.i.tutional nature that has arisen concerning the Cabinet meeting is as to its right to meet, on the call of the Secretary of State, in the President's absence. Ibid. 402.