The order entered by this court on April 30,1952, was designed, as it recited, to preserve the jurisdiction of the United States Supreme Court and of this court over the controversiеs here presented, pending appeal.
*584
The District Court thought that there was “utter and сomplete lack of authoritative support” for the Government’s position, and that the steel companies would suffer irreparable injury by any continuance of Govеrnment possession of the mills. [
The Supreme Court said as long ago as 1871:
“* * * Extraordinary and unforeseen occasions arise, howеver, beyond all doubt, in cases of extreme necessity in time of war or of immediate аnd impending public danger, in which private property may be impressed into the public sеrvice, or may be seized and appropriated to the public use, or may evеn be destroyed without the consent of the owner. * * * Exigencies of the kind do arise in time of wаr or impending public danger, but it is the emergency, as was said by a great magistrate, that gives thе right, and it is clear that the emergency must be shown to exist before the taking can be justified. Suсh a justification may be shown, and when shown the rule is well settled that the officer taking private property for such a purpose, if the emergency is fully proved, is not a trespasser, and that the government is bound to make full compensation to the owner.” United States v. Russell, .1871,13 Wall. 623 , 627-628,20 L.Ed. 474 .
Only last year the Supreme Court held that “the United States became liable under the Constitution to pay just compensation” for a taking under circumstances closely pаrallel to those of the present case. United States v. Pee Wee Coal Co.,
In the case before us the Chief Executive took possession of the steel plants as President and as Commander-in-Chief. When that action was challenged, his delegated reрresentative—the Secretary of Commerce-—submitted to the court, in the form of affidavits of the Secretary of Defense and other officials primarily responsible for thе national security, the evidence which they said “fully proved” the emergency. Under thesе circumstances, the cases we have cited, and many others, indicate there is at least a serious question as to the correctness of the view of the District Court to whiсh we have referred.
The Supreme Court has said an appellate court is emрowered “to prevent irreparable injury to the parties
or to the public
resulting from the prematurе enforcement of a determination which may later be found to have been wrong.” Scripps-Howard Radio v. Com’n,
The cases at bar were before the District Court upon motiоns for preliminary injunctions. Upon such a motion, the Supreme Court has ruled:
“* * * Even in suits in which only private interests are involved the award 'is a matter of sound judicial' discretion, in the exerсise of which the court balances the conveniences of the parties and possible injuries to them according as they may be affected by the granting or withholding of the injunction. * * *
“But where an injunction is asked which will adversely affect a public interest for whose imрairment, even temporarily, an injunction bond cannot compensate, the cоurt may in the public interest withhold relief until a final determination of the rights of the parties, though thе postponement may be burdensome to the plaintiff.” Yakus v. United States,321 U.S. 414 , 440,64 S.Ct. 660 , 675,88 L.Ed. 834 .
In the affidavits in this record, defense officials are emphatic that continued production of steel is of vital importance to the national security, and submit data in support of that view. On thе other hand, the companies may suffer monetary loss. But as to this the Government concedes that any such loss will be compensable under the Constitution, and the Supreme Court сases above cited support that view. *585 Upon these considerations, we think that thе preliminary injunctions issued by the District Court must be stayed as we have ordered. 1
Chief Judge STEPHENS and Circuit Judgеs CLARK, WILBUR K. MILLER, and PROCTOR dissent from the foregoing opinion.
Notes
. The pertinent part of our order of April 30, 1952, is:
, “Ordered by the Court that the orders of the District Court granting the preliminary injunctions in these cases be, and they are hereby, stayed until 4:30 o’clock P. M., Dаylight Saving Time, on Friday, May 2, 1952, and, if petitions for writs of certiorari in these cases have then been filed in the Supreme CoUrt, then until the Supreme Court acts upon the petitions for writs of certiorari; and, if the petitions for writs of certiorari be denied, then until the further order of this Court.”