*1 court justice. Since the interests of made findings of fact accepted the statutory exercise Referee, should sought. the relief powers grant unnecessary to makes This conclusion In between apparent conflict resolve the Pottasch supra, In re Faerstein, re 613, 101 Cir., F.2d Inc., Co., Bros. referee powers A.L.R. as to previously aside orders or set
to review made him. also, Ct.Cl., F.Supp. 657. See denying Referee The order confirming the order petition set aside reversed, and
sale Ordered, Decreed: Adjudged and
It Is of sale confirmation the order of 1. That July herein on
made into and entered is directed trustee is set aside here- petitioners forthwith to return by said $25,000upon delivery sum the 25 Im- trustee
petitioners to said bonds de-
perial Japanese Government sale. confirming -order
scribed in said findings fact certified
2. That hereby this court are
by the Referee to
adopted by this reference made a
part hereof. UNITED (PHILIPPINES), Inc. v.
CALTEX STATES. ISLANDS,
SHELL CO. PHILIPPINE OF UNITED Ltd. v. STATES. UNITED OIL CO. v.
STANDARD-VACUUM STATES. 48319.
Nos. Court Claims. Nov.
Decided
Leo Kissam and Albert T. R. Con- nelly, City (Cravath, New York Swaine & Moore, City, briefs), New York plaintiffs. Barnes, Washington, C, Kendall M. D. Clapp, City, Acting Newell A. New York (Holmes Atty. Baldridge, Asst. Asst. Gen. Gen., Atty. brief), on the defendant. JONES, Judge, Before Chief and LIT- TLETON, WHITAKER, MADDEN and HOWELL, Judges.
HOWELL, Judge. suits, these Plaintiffs in three which have consolidated, Company are Shell Philippine Islands, Ltd., Standard-Vac- Company, (Philip- uum Oil and Caltex Inc., pines), hereinafter referred to as Shell, Standard, Caltex, respectively. corporate which, All are entities at the arose, engaged time cause petroleum prod- commerical distribution of Philippine ucts Islands area. Each plaintiffs storage maintained operation trol supply District dis- the Pandacan terminal facilities position petroleum products Cebu. from the Manila, Island of I., P. companies stocks on hand of the oil companies suing for three oil All *3 troops their Pandacan terminals 'to of their compensation taking just for the field. In the exercise this control of. (Findings Pandacan terminal facilities land, the Army buildings, in- used fixed through 33). stallations, containers, equipment, rolling for claim an additional makes Standard stock, personnel companies’ and of the oil products petroleum just compensation for 29). (Finding Army Pandacan terminals Cebu at terminal at were its kept authorities track of the amount of on December taken time the terminal was products petroleum going military users 1941, 8, depot commander petroleum and organized the movements USAFFE, which were de- and name to the field. It was understood on terminal stroyed along with Standard’s Army pay would for all petroleum any 10, making April is not 1942. Standard Army for its own use. The also screened claim for sources, orders from allowing civilian sales (Findings on Cebu of its terminal facilities only to essential users such the fire de- through 41). partment, ambulances, etc. were Measures $3,943.20 for 131.44 suing is Shell safeguard taken to the facilities the use oil and Diesel sold troops, metric tons of fuel and the oil personnel of the com- 3, April Shell, on or about panies delivered job taking remained instruc- on Unit- Cebu for use personnel. to defendant at Army tions from Navy ed submarines. Defendant Army An effort was made promised pay agreed and the amount negotiate temporary leases with the oil (Findings claimed but -has not done so 34 companies facilities, of their terminal 35). press of Japanese did invasion completion
Pandacan Claim allow time for the agree- of such ments before it became necessary to aban- years prior several For outbreak 20). (Finding don Manila Japan, Army with the United States of war plans for had maintained detailed the de- 27, 1941, Until December no officer in the Philippine Islands. These fense Quartermaster Corps, Army, plans recognized quanti- for large need possessed authority, except to the extent supplies petroleum ties of extended delegated that was to him the com- Army possess defense effort. The did not general, manding requisi- to commandeer or adequate storage its facilities of own to use tion the or title of the stocks of the Rather, carry on full scale war effort. petroleum products, land, fixed install- day-to7day procured petroleum re- ations, equipment, supplies, rolling stock quirements from the oil com- commercial companies of the oil on Pandacan. Such rely upon panies planned to their stored authority delegated by was not the com- supplies in the of an emergency. case The manding general Quarter- to officers of the companies acquiesced were oil aware Corps except master on Pandacan as de- plan, cooperating Army by with the this Findings scribed in 13 to 20. maintaining certain stock so levels that the Between December adequate Army might supply be assured of companies oil were' notified that their re- of sudden mobilization. together maining stocks with all terminal requisitioned On December war between the facilities to be and that' Japan part United States and transported commenced at whatever could Simultaneously, Pearl Harbor. Japa- Army in the field was destroyed. to be Philippines nese attack on the got companies the oil under Officialsof were reluctant way. Army immediately responsibility comman- to take the for destruction quantities transport, deered necessity motor in- because of the imminent of an- cluding plaintiffs. belonging vehicles Japanese, swering to the Army and the December Army On agreed take took con- care demolition. On instance, appar requisitioned particularly Army as it December comply all ent that no effort was with made petroleum remaining stocks all question damages the Panda- Act. handling facilities at storage separated from companies, liability oil terminals can planned according 39(b) (1949 Reprint),1 Rule in fulfillment December (cid:127) and ly only facilities before the court policy, the terminal de- whether or not there remaining therein was a products all Army purpose plaintiffs’ terminal Pandacan2 by the facilities on molished Japanese. use to the which the Government denying their *4 required just compensation. make is to paid plaintiffs for States has The United of requisitioned for such plaintiffs and rolling stock contend that the ter- the Pandacan petroleum taking stocks in act Army’s over the control of the of Army. The used the operation supply as were minals of and distribution on De for the paid p'aintiffs 1941, also 12, States “taking” United cember a of amounted to ter- in the petroleum which were stocks properties the terminal for on that date use of at the time and were minals that and such use continued until mo the to com- Defendant has refused 31, demolition. ment of destruction on December 1941. of terminal pensate plaintiffs for the loss appears From the record that the of that ground the Pandacan on facilities Quartermaster Corps ficers the did not December on properties were taken these authority plaintiffs’ to have take title to 1941, purpose sole of destruction 27, prior terminal facilities on Pandacan enemy. by the prevent their use order to 27, 1941, December formal act no that tak- such contends that The Government place requisition date. took until that compensable Fifth the under ing is not Regarding Army’s substance of the the Amendment. findings, acts as related detail in the just com- base their claims for Plaintiffs exist, light known situation fa- pensation terminal for Pandacan the that we do not believe the control exercised Requisition Military upon the cilities 1941, Army between December 16, 1941, 55 Stat. Act of October Materials 27, 1941, and December amounted to U.S.C.A.Appendix, 742-43, amended, 50 as taking plaintiffs’ terminal on facilities 721-724, upon Fifth Amendment §§ public Army Pandacan for con use. Constitution, contending that the (1) instance, all trol in this circumstances con public taken for terminals were use sidered, complete more seems no us than on December United by Army inspectors that exercised meat by the until de- were used Government Safeway3 ap case. In that stroyed (2) December on peared Army representatives that en if taken for the first time on December orders, in Government set-aside forced solely purpose for of de- spected rejected slaughter meat at the keep from the terminals struction house, regulated shipments, etc. Besides compensable. enemy, such is Government, that, agen through other cies, slaugh this controlled amount of beef Inasmuch as court must render a tered, prepared, prices just compensation the cuts judgment for where Later, required charged. the Government there has been Safeway portions private property public to deliver it certain for use States of product require- the beef set aside. held the constitutional We on the basis use, alone, public taken for purpose in a to have been but it no is served dis- slaughter- was never contended that applicability of the statute cussion Reprint, applicable 38(e), Rules, new Rule 1. new 1951 Under liability, 38(c), and will be dealt rale U.S.C.A. opinion. separately in this with just compensation 2. claim Standard’s Stores, products Safeway alleged 3. Inc. have been v. United for oil F.Supp. properties 900. from Standard's Cebu Ct.Cl. taken 39(b), before the court Rule also 97á ing is noncom- case, into the hands In that itself was taken. house pensable remain and that the loss must subjected to
this,4 itself was facility ravages general falls as where it one permissible under the Govern- regulations of war. not powers, police and war ment’s have no doubt We use.5 The courts aside the use petroleum
that the
set
to delineate the ex
had little occasion
Army
case was taken
in the instant
exception urged
defendant
tent
However,
Government
public use.
as the
power
principle
the fundamental
petro-
all the
paid plaintiffs in full for
has
subject
in time
requisition
war is
Pandacan,
leum used and
prohibition of the Fifth
the constitutional
us.
problem does not
confront
against
taking of
Amendment
com
without
ac-
Government’s
conclude that the
We
clear, however;
pensation. It
been made
respect
plaintiff’s Pandacan
tions with
power
upon
war
Con
conferred
December
terminal facilities between
n
gress
abrogate
by the Constitution
does
did
1941, and December
*5
guaranty;
this constitutional
is
sus
facilities.
to a
of those
amount
pended
or affected
or the conditions
war
1941,
27,
the Government
On December
thereafter,
subject
following
is it
to be
nor
requisitioned
ter-
formally
the Pandacan
ing
Generally,
away by
taken
when
statute.
was
By
this date it
minals
destruction.
requisitioned or con
property is
be
apparent
would have to
that the area
purposes,
owner there
fiscated for war
the
the
it had
deter-
enemy,
and
yielded
to,
is ob
is entitled
the Government
the
and their contents
mined that
terminals
ligated
pay just
compensation
and full
deny
be
to the
them
should
A.L.R. 1290
See Annotation 137
therefor.
enemy.
Army
prepara-
the
The
took over
Further,
it is
and the cases cited therein.
and the actual demoli-
demolition
tion
compensable
property
if
settled that
to be
part,
least,
at
at
instance of the
tion
specific
or es
seized need not be
interest
companies’
who,
representatives,
oil
under-
agreement
tate,
only
amount
to an
standably, did
to answer to the
not want
covering
period.
an indefinite
Portsmouth
Japanese for such an act. From December
Hotel
United
Company
Harbor
&
v.
Land
moment of demolition
327,
135,
States,
67
U.S.
43 S.Ct.
L.Ed.
260
December
afternoon of
256,
287;
Causby,
U.S.
v.
328
United States
Army
complete
control of
premises
had
1206;
1062,
66
90 L.Ed.
S.Ct.
engaged
removing petroleum
373,
Corp.,
Motors
323 U.S.
65
v. General
laying
field
demolition
to the
357,
311;
L.Ed.
United
S.Ct.
89
v.
Johnson
charges.
date the
On
latter
entire ter- States,
391.
2 Ct.Cl.
deny
facilities
minal
were
question
Ordinarily,
involving
cases
Japanese,
their use
to the
who
contents
just compensation
the Fifth
already entering
were
this time
Manila.
involve the Government’s ex-
Amendment
Army
plain-
only
power
made of
use the
ercise of its
of eminent domain or
following
req-
tiffs’ terminal facilities
whether or not
some exer-
1941,
27,
regulatory
uisition
December
was to de- cise
the Government’s
au-
stroy
plaintiffs
them. The
claim that this
amounted in
to a
thority
law
public
property.
destruction
en-
was such .a
use as
another’s
The instant case
is
involving
them to
de-
type
titles
for the
a rarer
the seizure
stroyed
position military
property,
is
terminals. Defendant’s
authorities of
de-
governmental
required
urgently
destruction
of which
struction
prevent
republic.
great peril
in a
fall-
time of
defense of
period
States,
F.Supp.
during
from
118
4. At least
Decem-
Ct.Cl.
92
United
1016;
Regis Paper
ber 12 to December
1941.
St.
Co. v. United
States,
F.Supp. 831,
110 Ct.Cl.
Co.,
Aleutian
Cf.
Livestock
Inc. v.
United
denied 335 U.S.
certiorari
S.Ct.
626;
F.Supp.
119 Ct.Cl.
L.Ed. 370.
Mines,
Inc. v.
Fino
Oro
Consolidated
troops
entering
military to seize
federate
were
Arizona
power of
from
upheld by
Texas with the
intent
cut-
evident
property was
ting
troops
off
Under
Mitchell
the Union
Supreme
in 1851
therein.
Court
given
this state of
75. In
affairs orders
14 L.Ed.
Harmony, 54 U.S.
such mili-
case,
Taney carried
for the removal of
deciding that
Chief Justice
tary
transported
stores
and the
as could be
said,
page
134:
54 U.S.
destruction
be re-
of such as could not
doubt,
are,
occasions
without
“There
moved, together
private property
with such
be
may lawfully
private property
might
of Grant
value
prevent
destroyed to
possession of or
enemy.
put
At
the time the
public
falling
it from
into
hands
flag
torch the Confederate
officer,
enemy;
where a
and also
actually flying
city
of Tucson
im-
charged
particular duty, may
with a
citizenry
the armed
rebellious
public serv-
into the
private property
press
threatening
Grant was
immediate attack.
Unquestion-
use.
ice or take
possession half
be-
ousted of
mere
hour
cases,
ably,
in such
his
brought
fore the destruction. Grant
compensation to the
full
bound
make
suit in the
of Claims and the Govern-
Court
trespasser.
owner; but the officer is not a
interposed
here-—(cid:127)
heard
defense
clearly
opinion, that
“But we are
noncompensable
the destruction was
danger
be im-
cases,
must
all of these
overruling necessity.
because
the law of
necessity
impending; or
mediate and
opinion,
In
learned and well-considered
service,
as will
urgent
such
Wilmot,
court,
J., speaking
held
the action
delay, and where
not admit'of
*6
property to
that the destruction of Grant’s
late in
authority would be too
the civil
deny
enemy’s
it to the
use was a
the occasion
means which
providing the
use for which
par-
impossible
is
to define
calls for.
It
must be made under
Fifth Amendment.
neces-
danger or
ticular
circumstances
opinion
In the
cited
course
its
the court
lawfully
sity
power may be
in
which
approval
major
with
written
treatises
depend
Every case must
exercised.
subject, Ibid.,
page
at
44:
Ct.Cl.
emergency
is the
own circumstances.
damages
emergency
“The
under
are
consideration
to
right,
that
and
gives the
distinguished
be
into
kinds —those done
must
shown
exist before
two
be
by
sovereign,
the State itself or the
and
justified.”
can be
kind,
enemy.
those done
Of the first
in Mitchell
The Chief
statement
Justice’s
by way
deliberately
some
done
supra,
essentially
Harmony,
dictum
v.
was
field,
house,
precaution,
when a
a
a
as
or
against
action there had been
because the
person,
garden, belonging
is
a
Mitchell,
had
military
officer who
purpose
erecting
for the
question,
property
as an
seized
spot
town,
rampart,
any
piece
a
a
or
other
individual.
fortification;
standing
or
his
where
1863, however,
presented
In
a
pre-
corn or storehouses are
to-
essentially
involving
the same
to this court
enemy.
being
vent their
of use to-
Such
question
before us. Grant v.
as is now
good
damages are to be made
to the in-
States,
1 Ct.Cl.
977
The
v.
4
Cl. 543.
have recovered Perrin United
Ct.
could
that the railroad
case,
hand,
or
with
deals
that,
embarrass
instant
on the other
would
“Whatever
private
enemy,
property
as
not in
hands
impede
advance of
enemy, yet
de-
burning
singled
for deliberate
roads,
or
breaking up of
him,
defeat
cripple and
struction.
bridges,
would
or
subsistence,
destroying his means
congressional
third
involved
The
action
commanding
by the
lawfully ordered
compensate
his
bill to
a citizen for
house
* * *
safety of
state
The
general.
enemy,
had
re-
been
all considerations
overrides
in such cases
destroyed
captured,
deny
then
Ibid.,
page
at
120 U.S.
loss.”
enemy
possibility
recapture.
authority
As
page
at
S.Ct.
7
question
actually involved
whether
Vattel, several
position
Field cites
house
Justice
not the
had
cases,
proceedings
and the
state court
interpre-
The latter
course
battle.
Congress
upon
bills before
certain
President’s,
Globe,
Cong.
was the
tation
suffering war losses.
citizens
the relief of
and,
Cong.,
4155
42nd
2d Sess.
al-
(1872)
though
Congress
majority
dis-
Ibid.,
Vattel,
120 U.S.
from
The citation
agreed
him, the bill
with
died under the
page
is the same as
S.Ct.
veto.
upon Wilmot, J.,, in
the Grant
relied
that where
and includes
statement
Pacific
Railroad decision does not
standing
or storehouses
corn
a citizen’s
cases,
mention the
and Wiggins
Grant
being
their
prevent
approval
Harmony,
cited with
Mitchell v.
must
supra, with no
contrary
mention of its
dic-
court
relied
be made. Of
state
cases
tum.
Dall., Pa.,
upon, Respublica
Sparhawk, 1
from the
language
obvious
de
1 L.Ed.
involved
upon
foregoing
parties rely
cases
which the
enemy;
stroyed by
Parham v.
Justices
the distinction between cases where
court,
Ga.
involved
inferior
destroyed without
liabil-
relief; Taylor
&
injunctive
v. Nashville
ity because their destruction was an inci-
Railroad,
Tenn.
in
Chattanooga
battle,
and cases
the owner
dent
where
destruction,
legality
volved the
Cf.
property destroyed
compensated
must be
York,
Harmony, supra;
Mitchell v.
New
is somewhat
than clear
less
cut. We are of
Lord, Wend., N.Y.,
Mayor, etc. v.
opinion, however, that the reasoning
involved the construction of
statute
case,
where
necessarily
Grant
the court
not there had
of whether or
*8
very
met the
issue involved here and consid-
compliance.
fully, together
ered it
with Chief Justice
subject-matter
of
bills before
the
Harmony,
Taney’s
pre-
dictum in Mitchell v.
not
Congress
Field do
discussed
Justice
precedents upon
sent sounder
which to
first
involve the issue here. The
was the
today
the
found our decision
than does
dic-
burned while in
of a citizen’s home
the
Railroad
tum of
Pacific
case.
Clearly,
possession
enemy.
a
of the
such
The United States Government
compensable.
Juragua
destruction is not
organized
a
of limited
as
States,
Iron
v. United
Co.
U.S.
powers
a written constitution. One
29 S.Ct.
It prevent to us that to circumstances of fire. destruc tion Pandacan recognized gave terminals that the was use was statute thereof in the cognizable defense right common of action at common that plaintiffs’ taking of instant pur for law. In the case we are bound that pose making compensation without there- the Fifth Amendment to the Constitution chain, Philippine that right Cebu is an island in plaintiffs’ recognize to of Manila. English located some 350 miles southeast irrespective of Amendment Holmes precedents. common-law Depot On December the Cebu Justice that such' thought has, indeed, expressed the Commander, pursuant to his authorization tra- upon as much perhaps stood above, cases have meeting of mentioned called Pennsylvania principle. upon dition representatives companies as of three oil Mahon, 260 U.S. Coal Co. v. (1) informed them in the name of pointed As L.Ed. 322. S.Ct. sup- all USAFFE he was over their doctrine States, supra, the plies Grant United petroleum (2) of he products and destruction for a liability of products of absence price at of such freezing still necessity by overriding dictated Fie Army current contract rate. stated to country applied validity companies permitted that the oil would be Federal individuals, power but the take stock out a certain amount of from limited Government, derived from their terminals use the local for de- to the does not extend and for such civilian the Constitution on Cebu prop- individual’s agencies of an as were liberate destruction essential Island’s pay- without the economy. cause erty the common for compensation. just owner days Within a few after December Depot Commander established had com- the Government conclude We plete companies’ control over the oil ter- just com plaintiffs’ claim for on is liable patrols minals and had stationed Pan their pensation for the destruction petro- He issued an order that no thereon. facilities. dacan terminal products leum could be withdrawn without approval by repre- him his or authorized Claim Cebu pack- begun sentative. Work was plaintiff, No. In petroleum products tins aging or Company, seeks Oil Standard-Vacuum products drums the removal such for the value for recover dispersal or warehouses and or products petroleum certain protection supply dumps against possible the Island of April Cebu about enemy bombing. Japanese. deny their use Records were maintained of amounts petroleum stocks removed and the at terminal Pandacan In addition hand amounts on terminals. Petro- Standard, Luzon, on the Island Manila products leum released to civilians Caltex, Shell, operated each owned purposes civilian were recorded as stock No- In on the Island Cebu. terminals against initially credits amount Quartermaster, the Chief vember Army under the above-men- USAFFE, dispatch arranged for an requisition. companies tioned The oil Corps Quartermaster Cebu officer of the to' permitted charge the amount so re- Quar- and command advance to establish prices prevailing leased at for local civilian Depot Depot. Commander termaster This use. sup- procure directed to authorized and April companies’ On oil USAFFE, petroleum plies including petroleum products terminals and re- products, for use the southern islands maining in them were by order of Philippines. He authorized to ex- Commander, Depot pursuant to a demo- ercise his discretion as to the manner of plan, prevent the sup- lition facilities and procurement. had no bulk stocks USAFFE into plies falling from the hands of the products petroleum in or near Cebu and *10 enemy. Japanese forces were then in the negligible only amount in drums. began landings their harbor and on Cebu headquarters had been decided at USAFFE within hours after the demolition. petroleum products supplies not send to only petroleum paid The from Manila to Cebu. Standard for Defendant supplies were petroleum products in Cebu area those of the removed from Stand- companies. Opon dispersal or oil for use three terminal ard’s pay Opon in the Army, to but has' refused terminal on December petroleum the the products which remained in date taking. destroyed on terminal and with it were Commander, We Depot conclude that the
April 10, remaining products The 1942.6 so authority so, with full to do took Standard’s destroyed and so on 'hand on De- had been petroleum products for the United States 8, 1941, Opon cember terminal when at the destruction, 8, 1941, on December not for Depot requisitioned the Army Commander use, but for clearly Standard is entitled products all petroleum Standard’s just to products so for its name of USAFFE. , taken. Shell Contract Claim It is the contention that Government’s April 3, 1942, On or about Shell sold and there was no Cebu taking of Standard’s Cebu, delivered to defendant at on for use petroleum products on December Navy submarines, 131.44 Depot and that the Commander action of oil, metric tons of Diesel fuel for merely amounted establishment of promised defendant pay the agreed petroleum system priority Standard’s for $3,943.20. sum of parties agreed The products. Accordingly, the Government that Shell (case No. 48265) is entitled any taking at all concludes if there judgment $3,943.20 judg- in the sum of April 10, 1942, for taking was a on ment for in this amount will be entered purpose sole in same of destruction favor of Shell. maimer that the Government took Caltex, December Pandacan on facilities Standard and are entitled Shell recover for the of their terminal taking. Unlike situation the somewhat confused Pandacan, facilities on en- Standard is on Pandacan in December of relative titled to petro- recover for the of its authority Quartermaster officials products Cebu, leum the exact amounts Quarter- requisition private property, being reserved proceedings further Corps given master officialat Cebu was au- 38(c). Rule thority procure in November of It is so ordered. USAFFE, supplies petroleum including products any expedient. he found manner LITTLETON, MADDEN JJ., con- Depot On December Commander ac- cur. tually requisitioned these-products. These facts found Commisioner JONES, Judge part). Chief (dissenting in Findings excepted were not 37 and 38 and There are age-old, times when time- Depot defendant. Commander’s honored principles of law seem meet companies oil actions to take permitting hopeless head-on in conflict. of their stock for a certain amount may It is written that use of the local and their be taken for use without com- agencies, subject approval civilian pensation. Commhnder, Depot incon- On the hand recognized other it is well requisition. sistent with an act of that property in actual battle Army of December when As either side call compensation. does not petroleum products title to the took It is held that all rights human terminal, Opon Standard’s it did not take may -be victim battle If conditions. It took them destruction. them and used the battle lost all lost. approximately them four months. the Army n Between products which application of these two April 10, 1942, principles had been recognized twilight existence and zone installation, petroleum products 6. Standard’s Cebu known are in issue Opon terminal, storage included oil Standard’s Third Amended Petition. tanks, pipe lines, pumping equipment, any Shell Caltex have not made claim warehouses, facilities, can-making respect properties dock with to their Cebu machinery, containers, supplies, proceeding. n petroleum products. Only supplies
981 its operations to further difficult which are the boundaries factual armies.” differences The determine. fundamental. than rather opinion a care- The Pacific Railroad was attempt up the deliberate to sum ful and be cannot zone that uncertain In this private legal consequences of destruction yardstick mathematical by a measured military pursuant to the dictates fall. case facts of necessity. Mr. Field’s discussion Justice installations permanent plaintiffs’ Were have recovered whether railroad could the destruction use or was public taken for compensation for in an action for battle of substantial result the inevitable strictly bridges destruction of the was not conditions ? disposition necessary to the issue merely case. it cannot be dismissed But admit has seen fit defendant The case, propo- gratuitous. he As viewed the vehicles, gasoline, and movable converse involved sition and its were both paid them for were taken has articles not de- to be If both had discussed. liability, insists that or admitted us, his dis- cisive of the issue now before in a permanent fall fixtures buildings and persuasive. It strongly cussion is at least different classification. persuaded me has that the demolition of Railroad, 120 v. Pacific In United States was, II Pandacan facilities in War World 634, Mr. L.Ed. 7 S.Ct. U.S. bridges like the destruction the railroad gave consideration Field extended Justice War, in destruction of the Civil this court. That question now before war, by operations of “during railroad destruction of arose out of the field, by necessary or armies in the measures during the Civil bridges by Federal armies * * safety efficiency *.” their impede War; bridges were bridges railroad If were not Ibid. enemy. Later, again in the advance of the use”, were the then neither “taken military necessity, bridges response facilties Ad at Pandacan. oil terminal were rebuilt the United by States. mittedly, now before us sought charge the railroad presented Rail squarely in Pacific not as withholding rebuilding by for the cost of States, v. United Ct.Cl. road as Grant money the railroad for amount due Supreme But Court 2 Ct.Cl. passengers freight. The transporting Pacific Railroad not unaware railroad sued for the full amount Wiggins That case as well as Grant case. charges. transportation The Court decided had been Ct.Cl. that it was to recover that amount. entitled Supreme the railroad’s brief to the cited in however, Recovery, not based early cases These Court of Claims Court. Fifth Amendment. The created destruction 1887; Supreme sway did Court railroad; no cause of action neither sway they us now. do not believe should rebuilding (cid:127)did create action a cause of majority has “The stated: Govern- States; the United were dictated both attempt citizenry its ment does insure necessity. parties Where the ravages of in- against losses war due war, left fortunes there they own or flicted our forces in the Supreme left Court. campaign. it is But when conduct U.S., page At of 120 page 496 of specificperson’s property determined that S.Ct: “While the cannot be nature is so es- because of its or location to, charged injuries of, or destruction effort that it must taken war' sential private property caused by military oper- nation, put good use for field, ations of armies measures generally that the belief is our n safety their efficiency, acquisition.” the cost With should bear equally true, agree. .converse the doctrine I ap- is with that statement private parties quarrel. charged cannot be plication that I I works think applied way. their in a govern- (cid:127)constructed on lands here most unrealistic *12 I mode and time think we have here not a of of The delib- destruction. choice, rather erateness of this property plain- use putting to of the fact that properties tiffs’ destroyed singled a case of in the conduct were property for destruc- tion, campaign. majority’s of a seems to have influenced the conclusion that the was Fifth destruction around the While controls thrown taking. think, however, Amendment I that December in on only it emphasizes military nature given was not actual notice of the destruction. then made until December and it was destroyed. upholding This court has in clear that At been zealous it would be provision force Japanese time at the outskirts eminent domain of the hope Fifth have not city There was no Amendment. We Manila. principle unmindful were fur- that the Amend- saving property. city If suspended war, ment is defended, in and I undoubt- time of ther would propose do not destroyed. the hands that we should How- be it fell into be. edly If ever, scrupulous regard Amend- certainly be de- for the Japanese it would fact, require gave up. ignore does not us to the reali- stroyed they In before ; require say prop- ties it does not us to Manila, all residential and practically other- erty destroyed process by military action “taken- wise, destroyed of retak- was was possible'value use.” I the loss for think that ing years Any three later. here, compensation sought con- plaintiffs gone whichever horn was place,, sidered context of time is taken. dilemma regarded must be in law as what it was hopeless from a The situation battle, fact—a loss incident loss viewpoint army was with- military majority’s opinion, “inflicted words property was so Corregidor. drawn to The conduct, enemy our own or forces zone border as near to the battle « campaign.” of a flaming practical purposes all within its The law is based It is based’ presence reason. actually if not it. experience. on human It is the result of were de- The Pandacan installations ' part centuries of effort of the- very moment before at the molished almost minds, brightest legislative ju- both was a defensive The demolition retreat. dicial, to secure rules of action that will such, action, important As and an one. disputes justice assure between individ- tragic part battle inextricably govern- uals as as between citizen and well taking place on the island of Luzon. then ment. I not know how do to disassociate Applying very the rule to a difficult I pattern action from the of the battle. situation we are unable to find within the appreciation the realities of think range any just ground of reason for allow- requires plaintiffs’ to hold that situation us ing permanent in- destroyed in the course of properties were stallations. It was one darkest that battle. periods Japanese- World II. War occurred on December demolition advance at that time seemed irresistible. By January Manila Within, city. Shells were bursting in the Japanese the oil ter- control. Had a matter of hours everything would have- enemy minal fallen intact to the facilities been in the hands enemy and our and thereafter been army captured destroyed,, outnumbered forces, bombing, shelling, or other Corregidor. had it not been withdrawn to action, plaintiffs would admittedly that, I can reach no other conclusion than compensation. have no claim for Nor would the destruction was due battle conditions. compensation if the they have a claim for I plaintiffs’" dissent from the decision that property. had Of within, properties were taken for course, we had until Manila fell to waited meaning of the Fifth Amendment. installations, attempt destroy the it is not likely that the destruction would have beén I 'Company would the Shell allow Islands, Ltd., as effective. Philippine Our forces chose the surer to recover the sumt *13 $3,943.20 products and delivered sold Cebu, and which to defendant at dismiss the other paid would for. I plaintiffs. each of claims of
WHITAKER, foregoing J., joins opinion.
dissenting al. et MFG. CO. KILGORE
SULLIVAN
Civ. 1189. Court District New York. D.E.
May 1951.
Paul, Weiss, Rifkind, Wharton & Gar- rison, City, defendant, York Kil- New gore Mfg. Schelker, Dills, & Muecke New York D.C., F.Supp. 511.
See also defendant, City, Commercial Credit Corp. (Delaware). Fink, Jacquin Frank,
David M. New City, opposition to the motion. York RAYFIEL, Judge. District plaintiff, above-named and the plaintiffs similar actions now be- two court, wherein fore motions for the made, have been sue for same relief damages wrongful caused death of ammunition which explosion occurred Amboy, Jersey, New 19th South May, day