Page:Harvard Law Review Volume 32.djvu/836

800 8oo HARVARD LAW REVIEW of responsible officials of the government that it be given pre- cedence which is reHed on as a defense for the nonperformance of private contracts, and this only to the extent to which the giving of such preference made performance of those contracts impossible, the burden being on the defendant to prove that this impossi- biHty existed. It is beheved that where such was actually the case the question whether the initiative for the making of the contract came from the individual or the government should be immaterial. A court would scarcely refrain from holding a statu- tory compulsory order to be a defense because of proof that the defendant had not been unwilling to have the order placed with him; and it is the writer's view that priority certificates were, in so far at least as they were issued on government contracts, administrative substitutes for compulsory orders, substantially indistinguishable in coercive efifect, and properly to be held indis- tinguishable in their legal effect so far as they afifect actions for breach of contract. - Priority certificates were not, however, limited to direct or even indirect government orders but included under Class B priorities "orders and work which, while not primarily designed for the prosecution of the war, yet are of public interest and essential to the national welfare or otherwise of exceptional importance." ^^ Thus, for example, orders for the manufacture of farm implements were given an automatic B-2 rating.^" Such cases would appear to He wholly outside the power to place compulsory orders under the war statutes previously referred to: The justification for the exercise of control by the administrative over the field could not, therefore, be based on those statutes. Its justification lay rather in the fact that the government had so far dislocated many im- portant industries by the unprecedented requirements of the war machine that it was essential to see that the surplus was so directed as to provide for essential needs. Legal means of enforcing priority certificates of this sort were not lacking, however. Thus few industries can exist without a supply of certain basic raw materials such as steel and copper, and control of these was early acquired by the government through agreement with the principal producers. Without questioning the " See Priority Circular, No. 4, issued July i, 1918. 20 See above circular.